If you believe that you should have been included in the Will of a deceased person, you could make a family provision claim against the estate. A family provision claim is when you seek an order for a share or a larger share in a deceased estate.
It is a difficult and heart breaking time for many people who are experiencing grief, anger, confusion and hurt from being excluded from a Will. The act of excluding a person from a Will can bring back and trigger bad memories and traumatic events for the excluded person.
If you are an eligible person under section 57 Succession Act 2006 (NSW) you are permitted to make a family provision claim against the estate.
An eligible person is a:
Spouse or de facto partner at the time of death
Former spouse
Child of the deceased
Person who was dependent on the deceased at any time who was a grandchild or in the same household with the deceased
Person living in a close personal relationship with the deceased at the time of death
If you are an eligible person, you will need to see a lawyer about filing a Summons and supporting documents to make a family provision claim at the Supreme Court of NSW.
The Supreme Court of NSW has issued a useful Practice Note (No. SC EQ 7) containing information on Family Provision Claims. To commence court proceedings, you as the plaintiff will need to file and serve the following documents:
Summons
Plaintiff's affidavit using the precedent in the Practice Note
Notice of Eligible Persons
Affidavit in relation to an estimate of your legal costs and disbursements.
As of 1 July 2021, the Supreme Court of NSW filing fee for a Summons (contested probate matter) is $1,169.00.
When you file your court documents, the first court date will be allocated to your matter. At the first court directions hearing, the Judge will make procedural directions and an order for the parties to be referred to mediation called a Settlement Conference. The Judge will also set down a timetable for the defendant to file their court documents:
Administrator's affidavit following the requirements of the Practice Note
Affidavit of service (evidence that a copy of the plaintiff's court documents have been served any other eligible person, beneficiaries, or any other relevant party to the matter)
Affidavit in reply to the plaintiff's affidavit
Affidavit in relation to any other potential plaintiff or beneficiary seeking a further claim against the estate
Affidavit in relation to an estimate of their legal costs and disbursements.
At the Settlement Conference, the mediator will normally open the conference with some introductory comments and remind the parties of the purpose of the mediation. At times, the mediator may invite the parties or their legal representatives (lawyer or barrister) to make some opening remarks. The parties will then usually return to their private conference rooms. Negotiations commence with one party making an offer of settlement. The negotiations are usually conducted between the legal representatives outside of the client's private conference rooms. The mediator will generally follow where the negotiations lie, i.e. if one party has made an offer then the mediator will go to the other party seeking their response. The mediator cannot disclose confidential information or anything discussed without the party's consent.
Most matters settle at the Settlement Conference where the parties' legal representatives and their barristers draft the terms of settlement in the form of Consent Orders. The consent orders are then filed with the Court. The administrator then must lodge the Consent Orders in the Probate registry within 28 days after the order is recorded in the Court's computerised court record system.
The time limitation to file a family provision claim is 12 months from the date of death. The Supreme Court of NSW will apply the time limitation strictly unless in extremely rare situations.
The above information is based in the NSW jurisdiction.
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*** Disclaimer:
Information on this website or post does not constitute legal advice and that electronic dialogue with readers does not constitute any form of client engagement unless specifically agreed.
The information is provided on a general basis only. We strongly recommend that you seek your own independent advice from a lawyer about your situation.
If you have further questions, please contact us on 0432 010 907 for a complimentary 30-minute initial consultation.
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