Morris Succession Lawyers are experts in dealing with all forms of estate litigation, including family provision claims.

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​We have represented executors and plaintiffs in countless family provision claims, primarily in the Supreme Court of NSW but occasionally inter-state.

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What's involved when someone makes a family provision claim against an estate?

The claimant (Plaintiff) files a Summons - must be within 12 months of the death (but sometimes extensions may be granted)

The Plaintiff files an affidavit setting out their current and likely future financial needs, their relationship with the deceased, their age, their current and likely future medical needs, details of any provision the deceased made for them during their lifetime, the assets of the estate and what they're worth, the Plaintiff's assets (including their spouse's assets) and liabilities, details of what the deceased said they wanted to happen after they died (testamentary intentions) and anything else that may be relevant

The Plaintiff files a "Notice of Eligible Persons" setting out who may also be eligible to contest the Will to seek provision

The Plaintiff files an affidavit setting out what their legal costs are to date and what they expect them to be up until a mediation is completed

Usually the Estate representative (usually the Executor) then files an Appearance - formally putting themselves on record. The Court will want a natural contradictor to the claim - i.e someone to oppose it on behalf of the estate.

The Estate then files an Administrator's affidavit setting out what assets are in the estate, what liabilities there are, who else may be entitled to claim against the estate, where the estate administration is up to, who the beneficiaries are, and which beneficiaries may raise their circumstances (this is where the beneficiary is saying to the Court - "don't take funds away from me, I also have needs so the plaintiff shouldn't touch my share")

The Estate arranges service of those other eligible persons to ensure that anyone and everyone who could be a claim against the estate is on notice, so that any claims can be dealt with at once.

The estate must also file an affidavit regarding their costs to date and what they expect them to be up until a mediation is completed.

The estate can also file "reply" evidence addressing any of the claims in the Plaintiff's evidence.

A Court annexed mediation is then scheduled for the parties to attempt to resolve the matter. The Court's registrar acts as the independent mediator to facilitate negotiations.

If it is not resolved then the parties can issue subpoenas on third parties (with the Court's permission) and updating evidence is filed prior to the formal Court hearing/trial

 

It is fundamental to a family provision claim that the plaintiff evidences their financial need in order to demonstrate that the Will of the deceased fails to adequately provide for the proper maintenance, advancement and education in life.

The Court's practice note requires evidence to be put on early by a plaintiff setting out the financial circumstances of the plaintiff, as well as their spouse or anyone else who is liable to support them.

Conversely, the Defendant (usually the executor) must disclose the assets of the estate, and any beneficiary who wishes to raise their circumstances must also set out their financial affairs in the same manner as the plaintiff.

Beneficiaries are often reluctant to do so, as they have not commenced the proceedings and may not wish to tell the public about what they earn, what they spend their money on, and what assets and liabilities they have generally. However, if a beneficiary does not disclose this information then the Court may infer that they are financially comfortable and may be more at ease in taking part of their interest in the estate and providing it to the plaintiff.

Whilst this may be undesirable for a beneficiary, a failure to disclose can be fatal to a plaintiff. One of the best examples is the case of Leary v NSW Trustee & Guardian (2017) NSWSC 1113, whereby a plaintiff disposed that he was homeless, had no assets and was reliant on a disability support pension, lived frugally and had debts to pay.

As the trial approached, the executor served him with a notice to produce certain financial records, and subpoenaed a number of third parties seeking details of the plaintiff's financial affairs. The plaintiff ignored the notice to produce and did not comply with it.

The plaintiff's solicitors sought leave to cease to act. This is never a good sign.

It came to light that the plaintiff had lied to the court in his affidavits, and had received $450K from a travel insurance claim, had received significant life insurance payouts from his mother and stepfather, traded the stock market, and had gambled most of his money away.

The result? The plaintiff's credibility was obliterated, and ultimately the claim was dismissed. 

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For an obligation free appointment, please contact our friendly staff at Port Macquarie or Laurieton to arrange an appointment - in person, via telephone or via a wide selection of video conferencing platforms. 

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