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. There are limits on who can apply, and the period during which they can apply.

Who can make a Family Provision claim?

The Succession Act 2006 (NSW) defines who can make a claim.

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

When can I make a Family Provision claim?

There are time limitations on making a family provision claim. 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.

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 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 waiting for a contested Court hearing;
2. It can allow relationships between the parties to be maintained;
3. It avoids the pain of a Court hearing including cross-examination and public judgment of your family;
4. It is more cost-effective and quicker than Court proceedings;
5. you have greater flexibility to fashion a solution. Legislation binds the Court as to how it can resolve a matter, whereas mediation can explore alternative ways to resolve the matter.

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 must put on evidence about their claim on the estate including setting out their circumstances (including their financial position). The administrator has to set out in their evidence the extent of the estate so the parties know what there is to negotiate over.

The Court requires that the parties then attempt a mediation (Supreme Court Practice Note SC EQ 07). The parties agree on a mediator and whether the mediation will be in person or virtual. The Court may order a “Court-annexed mediation” where a Court Registrar acts as the mediator to facilitate the discussion.

The parties can be in separate rooms – they need not confront each other if that is likely to make reaching agreement more difficult.

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 written agreement setting out the terms agreed. To finalise the settlement, the parties must formalise their agreement as proposed orders and give them to the Court. The Court approving these orders 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.

Here to Help

Contact us now for free no-obligation telephone advice about mediation in family law provision claims.