Making or Defending a Family Provision Claim

A family provision claim usually has two parties, although there may be multiple plaintiffs or defendants. 

The Plaintiff

The plaintiff in a family provision claim is the person who is claiming that they are an eligible person, that they have not received adequate provision from the estate and that they should be awarded provision, or further provision, out of the estate. 

The test to see if the eligible person has received adequate provision is subjective. It will be determined on a case-by-case basis, with the court taking various factors into consideration including the entitlement that the plaintiff already is to receive out of the estate (under the will or under the rules of intestacy) and the plaintiff’s personal financial and material circumstances (i.e. their needs). 

Once the decision has been made to commence proceedings, a plaintiff will be required to file the following court documents. 

1. Summons: The summons is the document which initiates the court proceedings and states the relief claimed, which will include court orders for provision out of the estate.. 
   The Summons tells the court who the plaintiff is, who the defendant is (the executor or administrator of the estate), the name of the estate and the date of death. 

2. Notice of Eligible Persons: The plaintiff also has to prepare a notice of eligible persons, which tells the court the name and the address of any person that is or may be an eligible person. 

3. Plaintiff’s Affidavit: The plaintiff’s affidavit sets the plaintiff’s evidence in support of their claim including family background, relationship with the deceased and the financial and material circumstances of the plaintiff.  

4. The plaintiff’s solicitor will also prepare an affidavit which sets out the plaintiff’s estimated legal costs up to and including mediation. 

In New South Wales, all family provision proceedings are referred to a mediation once the parties have exchanged affidavit evidence. Mediations are sometimes held at court, referred to as court-annexed mediations, or conducted using private mediators.

Mediations are an opportunity for parties to control the outcome of the proceedings by reaching a settlement. Usually, it will require all parties to compromise their position to reach a settlement.

The Defendant 

The defendant in a family provisions claim is usually either the executor of the will or the administrator of an intestate estate. In rare circumstances, usually when it is the executor or administrator making a family provision claim, another person will be tasked with defending against the claim.

The defendant, like the plaintiff, must also file documents in defence of the estate. 

The defendant has to prepare the administrator’s affidavit. The administrator’s affidavit will include the following: 

• The full name and date of birth of the deceased; 

• Copy of the deceased’s will together with either a copy of probate or letters of administration if granted; 

• A description of the nature and value of the assets and liabilities of the deceased’s estate at the date of death (copy of the inventory of property attached to the probate or letters of administration is an acceptable document to include in the administrator’s affidavit); 

• What is or likely to be the nature and estimate in value of the estate, by estimating

  • The assets and liabilities of the deceased as at the date of the affidavit; 

  • Any property that the deceased may have distributed at any time after the death of the deceased and the date of the distribution of that property; and 

  • The gross distributable estate (excluding the costs of the proceedings). 

• A description of the nature and estimated value of any property the administrator believes could be notional estate. 

• The name and address of every person who, in the administrator’s opinion, is holding estate property as a trustee; 

• Any testamentary and other expenses or other liabilities of the estate that had been paid out of the estate, (the defendant’s costs of the proceedings are usually set out in a separate affidavit); 

• Whether any executorial commission is being claimed, and if so, and estimated amount they will be seeking; 

• The name and address of every person who, in the administrator’s opinion, is or may be an eligible person, an eligible person under a legal incapacity, person beneficially entitled to the distributable estate or a person holding property as trustee or otherwise; and 

• If any beneficiary wishes to put their financial circumstances into evidence, this can be included in the administrator’s affidavit. 

The defendant may also file an affidavit in reply to the plaintiff’s affidavit. This affidavit in reply can include any other matters or facts that the defendant wishes to rely upon. 

The final affidavit which the administrator will file is the administrator’s costs affidavit, which will include the administrator’s costs and disbursement calculated on a dollar-for-dollar basis up to and including the completion of mediation. 

After Mediation 

If a settlement is reached at mediation, orders will usually be prepared and signed on the day. The solicitors will also prepare a document known as the settlement checklist, which details the final information the Court will need to know before it considers the orders.  

If the parties cannot reach a settlement at mediation, the proceedings will progress to a hearing. There may be further affidavit evidence and discovery by way of subpoenas or notices to produce before a hearing date will be allocated. The parties may continue to conduct settlement negotiations throughout the proceedings.