In brief - When a will is contested it can cause considerable financial and emotional strain to the parties involved. Seeking legal advice can assist estate administrator/executors and estate beneficiaries to reach a pragmatic, cost-effective and timely resolution of the claim so that the main focus can be estate administration and bequest distribution.

What is a Family Provision claim?

The NSW Supreme Court is given the power under the NSW Succession Act 2006 to make provision out of the estate of a deceased person in favour of someone who is eligible. An order will be made if the court believes that either no provision has been made for that person or that such provision as has been made is not adequate for his/her proper maintenance, education or advancement in life.

The Court has a broad discretion. It can make "… such order for provision out of the Estate of the deceased person as the court thinks ought to be made…".

Who is eligible to make a claim?

Only certain people are "eligible" - under the Act - to make a Family Provision claim. They are:

  • wife or husband at the time of death;

  • de facto partner at the time of death;

  • child;

  • former wife or husband;

  • a grandchild who was dependent on the deceased at any particular time - wholly or partly;

  • a member of the household of which the deceased was a member and, at any particular time, wholly or partly dependent on the deceased; and

  • a person who was in a "close personal relationship" with the deceased at the time of death, defined in the Act as a relationship (other than a marriage or a de facto relationship) between two adults, whether or not related by family, who are living together in a close personal context, one or each of whom provides the other with domestic support and personal care.

The Act gives a broad definition to "child" to include those who are:

  • adopted by both parties to a relationship;

  • born in a de facto relationship;

  • in the case of a de facto relationship between two women, a child of whom both are presumed to be parents by virtue of the Status of Children Act 1996; and

  • a child for whose long term welfare both parties have parental responsibility within the meaning of the Children and Young Person's (Care and Protection) Act 1998.

When can an application be made?

Not later than 12 months after the date of the death of the deceased.

The Court can make an order extending time if "sufficient cause" is shown.

An application for a Family Provision order can be made whether or not administration of the estate of the deceased person has been granted.

What test will the Supreme Court apply in determining whether to make a Family Provision order?

Section 59 provides that a Family Provision order can be made if the Court is satisfied that:

  • the person who seeks the order is eligible;

  • if the eligible person is a former wife or husband, a grandchild/dependent, a "member of the household"/dependent, or someone in a "close personal relationship" - there are factors that warrant the making of the application having regard to all of the circumstances of the case; 

  • no adequate provision for the proper maintenance, education or advancement in life for the person has been made in the will of the deceased.

What factors will the Court consider?

There a long list of matters set out in Section 60 of the Act that may be considered by the Court in determining an application. The main ones are:

  • 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 person's estate;

  • the financial resources (including earning capacity) and financial needs - both present and future - of the applicant;

  • if the applicant is cohabitating with somebody else - the financial circumstances of that other person;

  • any physical, intellectual or mental disability of the applicant;

  • the applicant's age;

  • any contribution (financial or otherwise) by the applicant to the acquisition, conservation or improvement of the estate of the deceased, or to his/her welfare - for which the applicant has not received adequate consideration;

  • any provision made for the applicant by the deceased during the deceased's lifetime;

  • evidence of testamentary intention of the deceased;

  • whether the applicant was being maintained, wholly or partly, by the deceased at the time of death;

  • the character and conduct of the applicant before and after the date of death;

  • any relevant Aboriginal or Torres Strait islander customary law; and

  • any other matter the court considers relevant.

Court procedure and timeframes once summons is filed

Once a summons seeking a Family Provision order is filed, it will usually be served on the executor of the estate. Summonses are case managed by the Family Provision List Judge in the Family Provision List of the Equity Division of the Supreme Court. The Judge holds directions hearings on Fridays. Once filed, a Summons will be before the Family Provision List Judge within 28 days.

A Court Practice Note requires an applicant to file and serve on the estate a number of documents with the summons, being:

  • an affidavit of the applicant/plaintiff setting out information concerning the deceased, the person's eligibility to make a claim, the family or other relationship between the applicant and the deceased, the nature and extent of the deceased's estate, the claimant's financial resources and needs (including details of assets), any physical, intellectual or mental disability, details of any contributions made by the applicant to the acquisition, conservation or improvement of the deceased's estate, or to the welfare of the deceased, details of any provision made for the applicant by the deceased, either during the deceased's lifetime, or from the estate, evidence of testamentary intention of the deceased;

  • a notice setting out details of any other person who is, or may be, eligible; and

  • another affidavit setting out an estimate of the applicant's costs and disbursements up to and including the completion of a mediation.

At the first directions hearing (28 days after filing) the Court will make orders, including exchanging information between parties. The purpose is so that all parties may make a realistic assessment of their respective cases, ie the application for Family Provision. The Judge will usually also give directions to encourage early resolution, including referring the matter to mediation.

The Judge at the first directions hearing is also likely to make directions requiring the administrator/executor of the estate to swear an affidavit which is -

  • to include a copy of the will;

  • to set out the nature and value of the assets and liabilities of the deceased at the date of death;

  • to provide details of testamentary or other expenses that have been paid out of the estate; and

  • to give the names and contact details of persons who, in the administrator's/executor's opinion, is or may be eligible or beneficially entitled to the distributable estate;

  • to prove service of notice of the Family Provision claim on beneficiaries;

  • to reply to the applicant's affidavit (ie disputing any allegations of fact made in the applicant's affidavit); and

  • to set out the administrator's/executor's costs and disbursements up to mediation.

The Practice Note provides that unless otherwise ordered, all proceedings involving a Family Provision application will be referred to mediation.

Mediation - what is the process, who will mediate and what costs are involved?

The parties are expected to make contact with an accredited mediator. The mediation will usually take place within two to three weeks of the directions hearing. In other words, within two months of the Family Provision summons being filed it is mostly likely that the Family Provision applicant, the estate administrator/executor, and estate beneficiaries will be sitting around a mediation table.

Mediators are usually barristers or solicitors who are experienced in dealing with Family Provision claims, or retired judges.

Room hire and mediator's fees are usually shared between the parties. A day rate for a mediator can vary from between $2,500 to $7,000, depending on the level of seniority and the value of the estate.

Most mediation participants - including most beneficiaries - are legally represented during a mediation process.

Settlement at mediation

The Court will be notified if a matter settles at mediation. Once details of the settlement are provided to the Judge, orders will then be made. 

The estate will then be administered pursuant to the provisions of the will but as altered by the settlement and the Court order.

What happens if the matter is not settled?

If no settlement:

  • The matter will be brought back before the Judge who will make orders for the preparation of the matter for final hearing. There will usually be orders made for both the applicant and the estate administrator/executor to file and serve further affidavits as to costs and disbursements incurred to that point and likely to be incurred up to and including a full hearing.

  • The Court will also make directions for such things as:

    • a list of the affidavits of the respective parties;

    • an agreed chronology;

    • a joint statement of assets and liabilities; and

    • a short outline of submissions of each of the parties.

How to approach negotiation at mediation

Usually the costs of the applicant/plaintiff in the prosecution of a Family Provision application, as well as the costs of the estate administrator/executor, are borne by the estate. It is therefore important to remember that - absent successful resolution at mediation - the estate can be diminished by the incurring of legal costs.

The Practice Note provides that the Court can make orders capping the costs that may be recovered by a Family Provision applicant, including (but not limited to) cases in which the net distributable value of the estate is less than $500,000.

Legal representation - what can estate administrators/executors and beneficiaries expect?

The Court's Practice Note sets out an expectation that parties to Family Provision proceedings - including estate administrators/executors and beneficiaries - will be legally represented.

Your legal representative:

  • reviews the summons and the affidavit evidence;

  • provides advice as to:

    • the prospects of a Family Provision application succeeding;

    • the likely provision to be made in favour of an applicant if an application is likely to succeed; and

    • how that will impact the estate in terms of legal costs and the value of distributions to beneficiaries;

  • appears at directions hearings;

  • represents clients at mediation;

  • prepares for clients affidavits dealing with factual issues (if required) and written submissions for distribution to the other parties and to the mediator; and

  • assists in negotiating resolution.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.

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