Family Provision
7. Family Provisions Procedures
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 23 Jul 2015
- The Supreme Court of each state and territory in Australia has the power to determine family provision claims.
- The rules of each state or territory differ slightly but generally a family provision claim is initiated by the claimant with a summons that is supported by the claimant’s affidavit. This must then be served on the executor or administrator of the estate stating the specific legislation that is being relied on.
- The summons will set out a time by which the executor or administrator must respond. It is essential that the executor or administrator respond by the specified time as not doing so may affect their ability to defend a claim properly.
- The relevant court rules of the state or territory will then dictate how the matter progresses through the court.
- Additional evidence may need to be provided including expert evidence about the value of estate property. It is advisable for both parties to agree on appointing a joint expert as arguments between the experts can further increase the expense and delay of the claim.
- It is important to remember that even after a claim has been started in the court the parties can still come to an ‘out-of-court’ settlement at any time.
- It is common for claimants to file and serve an originating summons on executors and administrators during the period when they are involved in informal negotiations.
- This is done because there are time limits associated with making a claim against an estate.
- If the informal negotiations break down and the parties fail to reach an agreement the claimant ensures that their formal claim continues through the court system.
- Family provision claims are not something to be entered into lightly.
- Family provision cases are always expensive and stressful on the parties involved and often result in fractured family relationships.
- Even though a claim may be possible and ultimately successful the claimant may be disappointed with the result.
- Ideally family provision claims should be a last resort only to be relied on where there is a genuine need for provision from the estate.
- Family provision claims subject an executor or administrator of an estate to a highly stressful situation where they have a duty to protect the interests of the estate and the beneficiaries under the will but are also required to negotiate honestly and genuinely with a claimant often against the beneficiaries’ wishes.
- This balancing act must be achieved regardless of the emotional state and beliefs of the executor or administrator or their opinion about the merits of the claim.
- Whether you are the claimant or the executor or administrator who is required to deal with a claim you should obtain legal advice at the first opportunity.
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