The Court Process

A family provision application must be commenced by filing a summons and an accompanying affidavit in the Supreme Court within 12 months of the deceased's death. The summons should be accompanied by an affidavit that adheres to the prescribed form annexed to Practice Note SC Eq 7 - Family Provision.

The applicant's affidavit should adhere to the prescribed form annexed to Practice Note SC Eq 7 - Family Provision. Specifically, the applicant's affidavit must set out:

• Their eligibility to make a claim.
• The nature and extent of the deceased's estate.
• Their financial resources and the financial circumstances of any person they are living with.
• Other relevant matters, including their age, health, any contributions made by them to the estate, evidence of the deceased's testamentary intentions.

The applicant should ensure that their supporting affidavit is truthful and as accurate as possible. Note that the Court may decline to make an order due to lack of truthfulness or candour.

The executor or the administrator is responsible for opposing a family provision application and/or negotiating a compromise with the applicant.

In defending a claim, the executor or administrator must:

• Notify all other persons who may be eligible to contest the will.
• Prepare an executor's affidavit, which provides the Court with all the relevant evidence, including the assets and liabilities of the estate, the expenses already incurred such as funeral expenses, tax liabilities, or unpaid bills, and the value of any distributions made to the beneficiaries.
• Preserve the estate and refrain from distributing the beneficaries entitlements until the claim is concluded.

In NSW, the Succession Act and Practice Note SC Eq 7 – Family Provision requires all family provision claims to go to mediation before the matter can proceed to a final hearing and be determined by a Judge.

Family provision claims are ordinarily mediated by a Supreme Court Registrar, although the parties may employ a private mediator provided they advise the Registrar of that fact.

Mediation provides parties with the opportunity to settle the claim and agree on the appropriate orders; however, if the mediation is unsuccessful, the matter will be set down for a hearing before a Judge.

Prior to mediation, the parties will have exchanged evidence, determined the current valuation of the estate, and both parties should have obtained legal advice on the merits of their case. If that mediation is unsuccessful the parties, and their legal representatives, will have to take further steps to ensure the case is 'trial ready'.

Specifically, the main issues in dispute should be identified, and both parties should marshal evidence to support their case. Steps that may be taken include:

• Issuing subpoenas for the production of relevant documents.
• Subpoenaing witnesses who support their client's case to appear at the trial.
• Updating any property valuations.

At the hearing, each party will be given the opportunity to present their case before the Judge. The Judge will weigh up each party's evidence with regard to the relevant legal criteria and determine whether or not provision (or further provision) should be made. The Judge's decision will be recorded in the judgment.

In family provision proceedings, evidence is primarily be presented through affidavits rather than testimony on the stand.

At the hearing, objections will be taken to the affidavit evidence, and the witnesses will be cross-examined by the opposing legal representative on their affidavit.

Note that during the 'objections' stage, the parts of the affidavit which do not comply with the requisite rules of evidence will be 'struck out', meaning the Judge will not consider them in reaching their decision.

The Court may also make orders directing who has to pay the legal costs. Generally, the executor's costs (and often a successful applicant's costs) will be paid out of the estate. However, the Court has a board discretion to make any costs orders deemed appropriate in the specific case.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.