A lawyer can assist you with a family provision claim whether you are making, defending or negotiating a claim. This assistance may be advice about the best course to take, drafting relevant court documents, representing you during negotiations and appearing in court hearings.

If you are considering making a family provision claim a lawyer can advise you about your eligibility to make a claim and the likely success of any claim. If you decide to proceed with the claim a lawyer can then assist you with all steps of the claim.

If you are an executor or administrator of an estate on which a claim is made a lawyer can assist by advising you in relation to the defence or settlement of the claim.

Family provision claims are generally complex and the legislation may be difficult for a non-legally trained person to understand. Certain evidence must be provided to the court to support or defend a claim and there are rules associated with the type of evidence that is allowed. For that reason it may be a good idea to obtain legal advice when you first become aware that you have either been left out of the will or have not been left adequate provision in the will. If you are an executor or administrator it is recommended that you seek legal advice when you first become aware of a claimant’s intention to make a claim.

A claimant should make their claim as early as possible as there are time limits imposed on claims by the legislation. If the time limit has expired the court usually only allows a claim to be lodged after this date in exceptional circumstances.

It is important to note that eligibility to make a family provision claim is no guarantee that the court will make any provision or the desired provision for the claimant from the estate. A lawyer can advise you about the practical aspects of the claim. For instance whether your relationship with the testator qualifies as an eligible relationship, the likelihood that a claim will succeed and weigh up the potential cost of any litigation against the provision you may receive from the estate.

If you are an executor or administrator you are required to provide the court with all material relating to the claim regardless of whether it supports your case or not. Relevant material may include the circumstances of the beneficiaries named under the will, their need for provision from the estate, the extent of the estate, information about any distributions that have already been made, any information about any conduct that may disentitle anyone from taking provision from the estate and the relationship between the claimant and the deceased. A lawyer can assist you to determine which information is relevant and draft the documents required by the court. A lawyer can also advise you about informal negotiations and represent you during formal mediation and court hearings.

The first step to making a claim is to lodge an initiating application with the court. This is usually a summons with a supporting affidavit (sworn statement). The affidavit gives the executor or administrator and the court the claimant’s reasons for making a claim. The executor or administrator is then required to respond to the summons with their own supporting affidavit. Their affidavit sets out their position in relation to the claim such as whether they accept or reject the claim in whole or part.