Family Provision Claims Process

Step 1: The Foundational Case Assessment

Before any action is taken, we conduct a free, confidential assessment to establish the foundations of your claim. We critically analyse three key questions:

• Are you an ‘eligible person’? We confirm you fit into a category of individuals legally entitled to claim (e.g., spouse, child, dependent).
• Are you within the strict time limit? In NSW, a claim must be filed within 12 months of the date of death. We assess if you’re within this period or if an extension is possible.
• Does the size of the estate warrant a claim? We consider the value of the estate against your needs to ensure making a claim is a viable and worthwhile step for you.
• Does the claim have merit?  If the matter were to proceed to final hearing is it likely the claimant would succeed?

Step 2: Gathering Detailed Evidence

If the foundations are met, we work with you to gather detailed evidence. This includes a comprehensive history of your relationship with the deceased, your current and future financial needs, any contributions you made, and the circumstances of other beneficiaries.

Step 3: Notice to the Executor & Early Negotiation

As soon as sufficient information is gathered, advice of an intention to claim is provided to the executor of the estate. In some matters, we can negotiate before court proceedings are commenced and resolve the matter.

Depending on the circumstances, if a settlement is reached, it can be formalised by a legally binding Deed of Family Arrangement.

Step 4: Commencing Court Proceedings

If early negotiation isn’t successful, the next step is to commence proceedings in the Supreme Court by filing a Summons and a detailed Affidavit (a sworn statement). This sets out a great deal of required information.  The Court process requires several other documents to be filed as well.  Once all of this has been filed and provided to the executor, the executor and any affected beneficiaries have an opportunity to file material in reply.

Step 5: Court-Ordered Mediation

Approximately three months after a matter is commenced, the court will order a mediation. This is a confidential, half-day conference led by a Registrar to help the parties settle. The vast majority of matters—over 90%—are resolved either before or at this stage.

Step 6: Preparation for Hearing

If the matter doesn’t settle at mediation, it’s listed for a final hearing. In the lead-up, more intensive steps are taken, including preparing further evidence and issuing subpoenas to obtain documents or compel witnesses to attend court.  A barrister will be briefed to assist in the matter. 

Step 7: The Final Hearing

A final hearing typically takes place about 12 months after the matter is commenced. This is a formal trial before a Judge where witnesses are cross-examined and legal submissions are made. The Judge will then make a determination based on a wide range of factors to determine whether the deceased failed to make adequate provision for the claimant and, if so, what provision should be made.

These key considerations apply to both sides of the dispute:

• The Claimant’s Financial Position: Their current financial circumstances, earning capacity, and their likely future needs.
• The Size and Nature of the Estate: The total value of the assets and liabilities of the estate. A large estate may support a larger claim.
• The Relationship with the Deceased: The nature, quality, and length of the relationship between the claimant and the person who has died.
• Obligations to Others: The deceased’s obligations to the claimant, as well as to the other beneficiaries named in the will.
• The Financial Circumstances of Other Beneficiaries: The court will not just look at the claimant’s needs but will balance them against the needs of the existing beneficiaries.
• Contributions Made: Any financial or non-financial contributions made by the claimant to the deceased’s property or welfare (e.g., acting as a carer).
• The Claimant’s Character and Conduct: In some circumstances, the conduct of the claimant towards the deceased may be taken into account.
• Disability or Age: Any physical, intellectual, or mental disability of the claimant or other beneficiaries is a significant consideration.

Step 8: Judgment

After the hearing, the judge will generally reserve their decision, meaning they take time to consider the evidence and arguments. A formal written judgment is usually published a couple of months later.