If you think you have not been properly provided for in a persons will and you wish to dispute the will, you may be able to make a Family Provision Claim. A Family Provision Claim must be initiated within twelve months of the date of death. This is a strict time limit.

Before you start, you must first determine whether you are an “eligible person” to make a claim. Eligible persons include:

–          Spouses (including de facto partner) at the time of death;

–          Children of the deceased;

–           A former spouse;

–          Persons who were at any time wholly or partly dependant on the deceased and were a member of the same household as the deceased; or

–          A person living in a “close personal relationship” with the deceased.

To begin your claim a Summons together with supporting affidavits must be filed with the Court and then served on the executor of the estate. These documents have the effect of commencing proceedings in the Supreme Court of NSW Equity Division.

Once the documents are filed a date is set for the First Directions Hearing. This is when the Court makes orders relating to the provision of information and service of documents by both parties.

This usually includes an order for disclosure and generally relates to the parties financial circumstances.

The executor and other potential eligible persons are also given a chance to respond to your claim.

The second directions hearing provides the Court with an opportunity to review the documents which have been filed and ensure each party has complied with the first directions of the court.

The matter is then listed for mediation. Mediation is required in all Family Provision proceedings and is an attempt to bring the parties together to discuss the dispute and try to negotiate a resolution suitable to both parties.

If you settle the dispute at the mediation, then the matter can be finalised and consent orders may be entered into.

If you do not settle the dispute at mediation, then a timetable will be made for the preparation of the matter for a final hearing.

At the final hearing, the Judge will hear both arguments and make a final decision as to the appropriate distribution of the estate.

If you have any questions about whether you are an eligible person, whether you have been adequately provided for in a will and if a family provisions claim is worth pursuing, contact our team on (02) 9653 9466. For further information on Family Provision Claims visit our blog.

 

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