What is a Family Provision claim?

A family provision claim is a dispute of a deceased person’s Will, asserting that the Will-maker inadequately provided for a person for whom they had a moral obligation to make proper provision. They may have been left a smaller provision than expected or left out of a Will altogether. There are limits on who can apply, and the period during which they can make a claim.

Who can make a Family Provision claim?

Sections 57 & 59 of the Succession Act 2006 (NSW) defines who is an ‘eligible person’ for a claim.

Eligible people generally include partners and children. Sometimes they include the deceased person’s ex‑partners, grandchildren or stepchildren depending on the nature and factual circumstances of the relationship.

When can I make a Family Provision claim?

There are time limitations on making a family provision claim. In New South Wales, a claim must be filed within twelve months from the death of the deceased, unless the Court grants a request for an extension of time (which it seldom does).

What does the Court consider?

A Court considering a family provision application considers a range of factors to establish if the deceased had a moral obligation to provide for the person making the claim. These generally include:

1. The relationship between the applicant and the deceased;
2. The nature of the estate;
3. The adequacy of any provision made in the Will;
4. The nature of any obligation owed to the applicant;
5. The circumstances, including financial, of the applicant and all beneficiaries;
6. What contributions the applicant made to the estate of the deceased person;
7. The testamentary intentions of the deceased.

None of these factors, on their own, is going to determine a claim.

Why should I mediate a claim?

A family provision claim is likely to go through alternative dispute resolution (usually in the form of mediation) before being heard by the Court. Mediation is a facilitated discussion where an independent third party (a mediator) assists the parties through discussion and questioning to resolve a dispute.

Benefits to settling a family provision claim in mediation include:

1. It allows finalisation of the estate administration without the wait for a contested Court hearing;
2. It can allow relationships between the parties (who are often family members) to be maintained. It avoids the pain of a Court hearing including cross-examination and a public judgment of your family;
3. It is cost-effective, and quicker than the Court because the parties know quickly and with certainty what the outcome is;
4. you have greater flexibility to fashion a solution. Legislation binds the Court as to how it can resolve a matter, whereas when dealt with at mediation there may be alternative ways to resolve the matter acceptable to everyone.

What is the process?

Initial negotiations can begin as soon as the applicant gives notice to the executor/administrator of the estate that they intend to make a claim for provision or further provision. Exchanging offers at this early stage can help parties understand the other’s position.

Once an applicant has commenced court proceedings, they are required to put on evidence summarising their claim on the estate. They must set out their circumstances (including their financial position). The administrator has to set out in their evidence what the estate contains so the parties know what there is to negotiate over.

In NSW, the Court requires that the parties then attempt a mediation before the matter can proceed further.

The Court has said that “Unless otherwise ordered, all proceedings involving a family provision application will be referred to mediation at the earliest practicable time.” (Supreme Court Practice Note SC EQ 07 paragraph 31 )

The parties agree on a time, place and location for the mediation. Some mediations are conducted on Microsoft Teams, Skype or Zoom – because the parties do not want to be in the same room, or for convenience. This is another advantage of mediation – the parties need not confront each other if that is likely to make it more difficult to reach agreement.

The parties agree on a mediator (or to not have a mediator). The Court may order a “Court-annexed mediation” where a Registrar of the Court acts as the mediator to facilitate the discussion.  

How does a mediation work?

On the day of the mediation, initially the mediator will usually explain the process and their role as facilitator. The mediator is there to help the parties consider options, not make a decision. Each party can then make an opening comment. Then there are structured negotiations led by the mediator, going between the parties and their representatives.

What then?

If the parties reach agreement, they sign a formal settlement agreement. This is a written agreement setting out the terms agreed. To finalise the settlement, the parties must give the Court their agreement and proposed orders. The Court then considers and approves these orders, which ends the court proceedings.

If the parties cannot reach agreement, they must tell the Court that they attempted to negotiate but were unsuccessful in finding a resolution. The Court will then continue conducting the matter, including obtaining more evidence and setting a hearing date.

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