What's involved in a family provision claim?

What's involved when someone makes a family provision claim against an estate?

1. The claimant (Plaintiff) files a Summons. This must generally be done within 12 months of the death, although the Court may grant an extension in some circumstances.

2. The Plaintiff files an affidavit setting out their current and likely future financial needs, their relationship with the deceased, their age, their current and likely future medical needs, details of any provision the deceased made for them during their lifetime, the assets of the estate and their value, the Plaintiff's assets (including their spouse's assets) and liabilities, details of the deceased's testamentary intentions, and any other relevant matters.

3. The Plaintiff files a Notice of Eligible Persons setting out who else may be eligible to contest the Will and seek provision from the estate.

4. The Plaintiff files an affidavit outlining their legal costs to date and the costs they expect to incur up until mediation.

5. The Estate representative (usually the Executor) files an Appearance, formally putting themselves on record. The Court generally requires a natural contradictor to the claim, being someone who can respond to the claim on behalf of the estate.

6. The Estate files an Administrator's affidavit setting out the assets and liabilities of the estate, who else may be entitled to claim against the estate, the current status of the estate administration, who the beneficiaries are, and whether any beneficiaries wish to raise their own financial circumstances.

7. The Estate arranges service on any other eligible persons to ensure that everyone who may have a claim against the estate is notified, allowing all claims to be dealt with together.

8. The Estate files an affidavit regarding its legal costs to date and the costs expected up until mediation.

9. The Estate may also file reply evidence addressing claims made in the Plaintiff's evidence.

10. A Court-annexed mediation is scheduled to allow the parties an opportunity to resolve the dispute. The Court Registrar acts as an independent mediator to facilitate negotiations.

11. If the matter is not resolved at mediation, the parties may seek permission from the Court to issue subpoenas to third parties. Updated evidence may then be filed before the matter proceeds to a final hearing or trial.