In New South Wales, family provision claims are brought by the deceased’s spouse or children or someone who had lived with the deceased in a close personal relationship or had been wholly or partly dependent on the deceased for their proper maintenance, education or advancement in life.
The Court’s role in family provision claims is to make adequate provision for the applicant if the Court is satisfied that adequate family provision has not been made in the deceased’s will.
The Court may also make further provision for the applicant who already benefits from sufficient provision for support and maintenance, in circumstances – such as a promise or an expectation reasonably held – that further provision would improve the applicant’s prospects in life.
However, the Court’s role is not to rewrite the will of the deceased merely to achieve a fair outcome for the distribution of the estate’s assets.
The Court will generally consider what is adequate for the applicant’s proper maintenance, education and advancement in life.
It is held in Alexander v Jansson  NSWCA 176 that the proper maintenance is not merely the sustenance of the applicant but also “… requires consideration of the totality of the claimant’s position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility.”
In NSW, the applicant for a Family Provision claim must apply within 12 months from the date of death of the deceased.
In certain circumstances the Court has a discretionary power to extend the above time limit.
Executor’s Duty in Defending a Family Provision Claim
If you are an executor or an administrator of the estate against which an applicant has commenced a family provision claim, you have a duty to defend the claim brought against the estate.
Once the proceedings are commence by the applicant, the executor should swear or attest an affidavit setting out the assets and liabilities of the estate and any possible notional estate.
The Court will then consider whether any of the assets of the estate or notional estate could be relevant in making additional provision to the Plaintiff.
The executor’s affidavit should consider issues such as the nature and value of the assets and liabilities of the estate at the time of the death of the deceased and the likely nature and value of the distributed assets.
The affidavit should also state the name and address of the eligible persons and also persons who are entitled to distributable estate.
What Happens in the Court?
The matter will be listed before the Court usually for a number of directions hearings and a timetable would be set for the parties to serve their evidence.
It would be reasonable at this stage for the parties’ solicitors to brief counsel for preparation of evidence and if necessary attending the hearings.
Following filing of the evidence, the Court usually orders a mediation to be held before a Registrar of the Court or before a private mediator.
Family Law Mediation is a process where parties’ legal representatives narrow the areas of dispute between the parties with an aim to have the matter resolved without proceeding to a trial.
At the mediation usually the mediator encourages the parties to resolve the matter by exchanging offers of settlement.
If the mediation is unsuccessful, it is usually recommended that the parties file a formal offer of compromise reflecting the last offer of settlement they made at the mediation to protect the costs.
A party may be subject to an adverse costs order if he or she rejects the offer of compromise made by the other party which was in excess of what was awarded by the court at the trial.
The court would set down a hearing usually for more than one day if mediation is unsuccessful.
During the trial the court will hear the evidence of the witnesses and the cross examination by each parties’ barrister.
Generally the applicant who is successful at a family provision claim would be entitled to an order for the costs of the proceedings on a party/party basis.
However awarding costs orders is at the discretion of the Court and the Court may cap the costs at a particular amount and order the parties to pay the balance of their legal costs. This usually occurs in cases where legal costs are excessive.
Generally the costs of the executor defending the family provision claim would be ordered to be paid out of the estate of the deceased.
Family Lawyers Sydney at Pavuk Legal can provide you with sound legal advice in relation to a range to Family Provision Claims, including:
- Estate planning;
- Property disputes; and
- Application for the removal of the executor of an estate.
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