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Family provision applications – will I end up in Court?

If you have been excluded from someone’s Will, you may be eligible to make an application to the Court for a portion, or a larger portion, of a deceased person’s estate.

This is known as a “family provision application”.

Alternatively, you may be the executor of a deceased’s estate and someone has provided you notice of their intention to bring a family provision application.

Most people mistakenly think that the first step is to go to Court to assert your position.

However, the majority of family provision applications do not end up in Court. Rather, they are resolved either through early negotiation settlements or mediation sessions.

Benefits of reaching a settlement outside Court

Resolving a family provision claim outside the Court has many benefits, including:

  1. being more cost-effective than expensive and timely Court processes.
  2. less time and less stress for the executor, beneficiaries and applicants.
  3. more certainty around the outcomes as the parties get to work out a solution for themselves.
  4. more private in nature as the parties may be able to preserve relationships with one another.

Preliminary stage

In most cases an eligible applicant may engage a lawyer to notify the executor or the lawyers acting on behalf of the executor, of their intention to make an application.

When initiating an application, evidence from an eligible applicant is put forward to show who they are and why they are eligible to make a claim. They will often provide:  

  • evidence as to why the provision made for them under the deceased’s Will is inadequate;
  • their personal and financial circumstances;
  • their needs; and
  • relationship with the deceased.

This notice may also include an offer of settlement, to commence the negotiation phase.

Negotiations

Negotiations can take place between the applicant and the executor of the estate. In the right circumstances, an agreement between them may be reached before any Court proceedings have been commenced.

What is involved in negotiations?

Once the notice of intention and any initial offers of settlement have been received by the estate, the executor will consider the following:

  1. consider the merits of the claim and evidence provided by the applicant;
  2. consider what result would be in the best interests of all the beneficiaries, given the assets and liabilities of the estate; and
  3. the potential benefits of reaching a settlement outside Court by negotiation.

At this point, the executor and applicant will go back and forth with offers of settlement. If a settlement can be reached at this stage, it will be the most cost-effective outcome for all involved.

What if a negotiation cannot be reached?

If a negotiated settlement cannot be reached in the preliminary stage before the expiration of time limits, then the applicant may choose to file proceedings with the Court. If this occurs, the parties will be subject to the process of the Court.

A negotiated settlement can occur during this stage; however, may proceed to mediation before an agreement is made.

Mediation

If a settlement is not reached, the next step is for the parties to organise a mediation.

Once all material has been filed with the Court, the parties appoint a mediator and come together with their legal representatives to participate in a mediation.

In Queensland, a practice direction by the Court exists, which requires the parties to attend mediation before the matter can even proceed to a trial.

What is mediation?

Mediation brings together the key parties involved to discuss potential solutions. The majority of family provision applications settle at the mediation.

An impartial mediator will also attend to guide the parties in discussions, prevent arguments and help the parties reach an agreement where everyone is satisfied.

Mediators do not provide legal advice and cannot authorise a settlement. Rather, their main function is to oversee the discussions and prevent arguments.

Unlike a Court hearing, which has specific legal processes, a mediation has significant flexibility in how it is arranged, depending on the parties’ preferences.

What happens after mediation?

If an agreement is reached, the terms are written down and signed by all parties, whereby the settlement terms become legally binding.

The last resort

Only a minority of cases occur where the parties are unable to come to an agreement, is Court intervention required.

If the parties participated in a negations and mediation, but there is still no resolution, the matter will go to trial.

The executor is then required to distribute the estate based on the Final Orders issued by the Court.

If you are considering making a family provision application, or you are an executor of an estate that needs to respond to a claim, please feel free to contact us to discuss your options.

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Duncan MacDougall

Written by—

Duncan MacDougall

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