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Eligible persons have one year form the date of death to file a Claim for Provision or further provision with the Court.
If you are an Executor of a Will and someone has made a claim on the estate, Next Legal & Conveyancing can assist you to defend the estate and achieve the best possible outcome for the estate.
How to make a Family Provision Claim?
1. File a Summons an supporting Affidavit
Family provision claims are made by filing a summons and a supporting affidavit in the Supreme Court of New South Wales.
The summons sets out what Orders you seek. Usually, an applicant seeks an order that a provision, or further provision, be made from the estate for the maintenance, education and advancement in life. The supporting affidavit should address the eligibility of the applicant and provide details which support why that person should receive a provision or further provision from the estate.
It is not necessary for Probate or Letters of Administration to have been granted before bringing a family provision claim.
2. The First Directions Hearing
After filing a family provision claim a date for the first directions hearing will be listed in the Supreme Court. The applicant is required to file an affidavit which provides a cost estimate for expected legal fees up to and including mediation. The applicant must also serve notices on all potential claimants and file an affidavit which specifies which persons, if any, have been served.
The estate must also file an affidavit as to the expected costs up to and including mediation, an affidavit which details whether there are any competing claimants and the names of competing claimants as well as an executor/administrator affidavit which provides details with respect to the nature of the estate.
3. Mediation
After the applicant and the estate have filed the required documents, the Court will make orders requiring parties to attend private or Court assisted mediation. Mediation gives parties the chance to finalise matters early, and by consent, and to avoid further legal fees.
For estates with a net value of over 1 million dollars, private mediation is preferred. Court assisted mediation, which occurs with the assistance of legal representatives and without an independent mediator, is often the preferred option for smaller estates.
If the matter does not settle at mediation, the matter proceeds to hearing and a hearing date is listed.
4. Hearing
Hearing dates are usually set many months after mediation and if matters do not resolve at mediation often people will not receive part or all of their gift pursuant to the Will for a long time. The delay in proceedings and fees associated with protracted litigation are usually an incentive for parties to settle at mediation.
How can we help?
Let the experienced estate team at Next Legal & Conveyancing assist you with your estate matter whether you are the claimant or executor of an estate, by:
- Taking instructions and advising you on whether you should pursue a claim for provision or further provision;
- Corresponding with the Court and/or other parties, as required;
- Taking instructions and advising you on how best to defend the estate;
- Drafting your application to the Supreme Court;
- Drafting your Defence to any claim filed against the estate;
- Representing you at mediation; and
- Preparing for and representing you at the hearing.
Frequently Asked Questions
Section 57 of the Succession Act 2006 (NSW) details which persons are “eligible” to make a family provision claim. Eligible persons include:
(a) a person who was the spouse of the deceased person at the time of the deceased person’s death,
(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
(c) a child of the deceased person,
(d) a former spouse of the deceased person,
(e) a person:
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
Section 60 of the Succession Act 2006 (NSW) details the considerations of the Court before making orders in a Family Provision claim including:
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
(e) if the applicant is cohabiting with another person–the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.
