Experienced Will Dispute Lawyers Get Your Issue Sorted
If you have been left out of a Will or you have been left less than you think is fair pursuant to a Will, our expert will dispute lawyers can advise you with respect to whether you are eligible and should make a Family Provision Claim.
Eligible persons can seek provision or further provision from a deceased person’s estate.
Eligible persons have one year from 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 professionals will dispute lawyers can assist you to defend the estate and to achieve the best possible outcome for the estate.
Who is Eligible to apply for provision or further provision from a deceased’s estate?
Section 57 of the Succession Act 2006 NSW details which persons are “eligible” to make a Family Provision Claim. Eligible persons include:
- A person who was the spouse of the deceased person at the time of the deceased person’s death
- A person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death
- A child of the deceased person
- A former spouse of the deceased person
- A person who was, at any particular time, wholly or partly dependent on the deceased person
- A person 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
- A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
Important Things to Consider
Section 60 of the Succession Act 2006 NSW details the considerations of the Court before making orders in a Family Provision claim including:
- Any family or other relationship between the applicant and the deceased
- The nature and extent of any obligations or responsibilities owed by the deceased to the applicant
- The nature and extent of the deceased’s estate
- The financial resources and needs of the applicant
- The financial circumstances of any person the applicant is living with
- Any physical, intellectual or mental disability of the applicant
- The applicant’s age
- Any contribution by the applicant to the deceased’s estate or welfare for which they were not appropriately compensated
- Any provision made for the applicant by the deceased
- Any evidence of testamentary intentions (i.e. in a will or statement) of the deceased
- Whether the applicant was being wholly or partly maintained by the deceased
- Liability of any other person to support the applicant
- The character and conduct of the applicant
- The conduct of any other person
- Any relevant Aboriginal or Torres Strait Islander customary law – and
- Any other matter the Court considers relevant.
Filing a Claim
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 provision or further provision be made out of 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 provision or further provision.
It is not necessary for Probate or Letters of Administration to have been granted before bringing a family provision claim.
The First Directions Hearing
After filing a 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 executors/administrators affidavit which provides details with respect to the nature of the estate.
After the applicant and the estate have filed the required documents the Court will make orders requiring parties to attend private or Court annexed mediation. Mediation gives parties the chance to finalise matters early and to avoid further legal fees.
For estates with a net value of over $1 million, private mediation is preferred. Court annexed 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.
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.
The experienced will dispute lawyers at NEXT Legal & Conveyancing can assist you with your estate matter whether you are the claimant or executor of an estate.
Let Our Will Dispute Lawyers Help You By:
- Taking instructions and advising you on whether you should seek a claim for provision or further provision
- Corresponding with the Court and 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.
Our office is in Newcastle, and we provide informed will dispute advice to clients worldwide on matters based in New South Wales and Queensland.