What's involved in a family provision claim?

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

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

ℹ️The 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 

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

ℹ️The 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

ℹ️Usually 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.

ℹ️The 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")

ℹ️The 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.

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

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

ℹ️A 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.

ℹ️If 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