A family provision claim is brought in the Supreme Court of NSW. It is commenced by filing a Summons together with a detailed affidavit that sets out your evidence in support of your application that provision should be made for you from the estate.
The application must be accompanied by a notice of eligible persons. This notice must list everyone else who may be entitled to bring a claim for provision against the estate. Your solicitor must also file an affidavit (if you are not representing yourself) setting out the estimate of the costs of the application up to and including a Court ordered mediation.
Whilst it is possible to represent yourself in family provision proceedings, it is advisable to seek the advice of an experienced lawyer to assist with the preparation of your affidavit. They will be able to make sure it covers all the factors the Court considers when deciding whether to make an order for provision. Succession law is technical and it is important that you are able to address each factor in your evidence or your application may fail.
At the time proceedings are commenced, the Court allocate a ‘first return date’. This is the date on which the matter first comes before the court. The date will be approximately 6 to 8 weeks after your claim was filed. When the matter comes before the court on this date, the court will make directions about how the case is to be prepared for the final hearing.
After your claim is filed, you must then serve it on the executor of the estate. The executor must then serve notice of the proceedings on everyone who may be eligible to make a family provision claim. This includes the people listed in the notice as well as any other person the executor is aware of who may be entitled to bring a claim against the estate.
Before the proceedings come before the court for the first time, the executor must file an affidavit of executor. This affidavit sets out all of the assets of the estate including any joint assets the deceased may have had with another person, any assets that were disposed of within three years of the date of the executor’s death as well as any other property that may be considered “notional” estate by the Court. Notional estate is unique to New South Wales and it allows the Court to treat property that is not actually part of a deceased’s estate as still “notionally part of the estate”. This can of course enhance the amount that can be awarded to a plaintiff. This idea of ‘notional estate’ was designed to prevent a deceased person from transferring ownership of property during their lifetime to avoid that property being made part of a family provision order. Examples of notional estate include superannuation, property that was owned by joint tenancy with another person, often the family home and/or property that was transferred within one year before the deceased’s date of death.
Once the executor has filed this affidavit, you will have a good idea of the complete value of the estate, including ‘notional’ estate. The Court is likely to order that the parties attend a mediation or Court ordered settlement conference. At this conference, the Court expects all parties who have claims on the estate will attend and every effort will be made to reach a resolution. This early settlement conference is designed by the Court to bring estate disputes to a resolution before significant legal costs have been incurred. This is to try to maximise the value of the estate for the beneficiaries. For this reason many family provision claims resolve at this initial mediation.
If your family provision claim does not resolve at the mediation then the proceedings will come back before the Court and the Court will make further directions about how the matter is to be prepared for a final hearing. In the New South Wales Supreme Court, the Court attempts to have family provision claims heard finally within 12 months from the date the application was filed. You can expect your claim to be heard within 12 to 18 months of your initial application being filed if you are unable to reach a negotiated settlement with the estate.
Deciding whether or not to bring a family provision claim is best done with legal advice from a solicitor with experience in this area. Please get in touch for a free initial consultation if you are considering bringing a family provision claim.
A family provision claim must be brought in NSW within 12 months from the date of the deceased’s death. The Court has the power to extend that time, although it must be satisfied that there are valid reasons why the claim was not brought within the 12-month period. There are other deadlines in other states, many of which are shorter than then NSW’s deadline, so please check carefully.
If you are considering bringing a family provision claim in relation to a deceased person’s estate, we have decades of experience helping clients get a greater share of the estate. Please get in touch for a free preliminary consultation.
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