Contesting a Will in NSW.
Family Provision Claim: Step by Step.
If you have not been properly provided for there can be about 13 possible steps involved in the Family Provision process depending upon the point at which the matter is finalised. The following is an overview however please remember every family is different so every case will also be different.
1. Getting a copy of the Will
The following people are entitled to a copy of the Will.
a) any person mentioned in the will;
b) any person mentioned in an earlier will as a beneficiary;
c) spouse, parent or issue of the deceased;
d) any person who would have been entitled to a share in the estate if the deceased died intestate;
e) parent/guardian of a minor mentioned in the will or who would have been entitled to a share if the deceased died intestate;
f) creditor or person with a claim against the estate;
g) a person who may be eligible to bring a family provision application".
Getting a copy of the Will can often be difficult because sometimes the executor/s or even the executors solicitors refuse to hand over a copy. The people who are entitled to a copy of wills are family members, those named in the Will or an earlier Will and those intending to claim Family Provision (so long as you are eligible to claim).
2. If there is no will (Intestacy).
If there is no will the rules of intestacy will apply and each state have slightly different rules as to which family member is entitled to provision out of the estate. If your share of the estate, according to those rules is not fair or proper you may have a claim for provision.
3. Trying to resolve the dispute early.
If the family members involved in your case are prepared to settle out of court, documents are prepared in the terms agreed upon for your written approval. If all persons involved are over 18 years of age and have full mental capacity the agreement does not have to be approved by a court. The legal costs in such a case will be at hourly rates and will depend upon how much time was involved in negotiations.
4. Court approval.
If there are persons involved who are under 18 years of age or who do not have full mental capacity, any settlement will have to go to court for the court to approve. This means documents (sworn or affirmed affidavits) will have to be prepared by the solicitors on each side in the manner stipulated by the rules of court sufficient for the judge to read and understand the various financial needs of all family members concerned. The settlement agreement will only be approved if the judge is of the view the settlement is a proper settlement and in particular the settlement is in the best interests of any person under 18 (or without full mental capacity).
5. Settlement unsuccessful.
If settlement negotiations are not successful you will be required to commence proceedings with a view firstly of going to mediation. The application is prepared by us and includes an affidavit by you of your evidence. The affidavit will contain information about your finances, health and family history and is filed in court and then served upon the executor of the estate.
The solicitor representing the estate will give advice to the executor and will protect the interests of any beneficiaries named in the will. Those family members will swear or affirm an affidavit in response to your claim including full details of the estate and full details of the family members named in the will who are opposing your family provision application.
6. Your evidence.
With the evidence from both sides of the dispute now received, all persons involved will have a clearer picture of every one's personal situation, health and financial position (which are the most important elements in these cases). Both sides will again attempt to settle the claim. Whilst negotiations are taking place a date will be set for a compulsory mediation of your claim. A mediator will be chosen although each State has different rules in this regard. Sometimes the judges become involved in discussions with the parties and at this stage barristers also frequently become involved.
If the claim is settled at mediation or shortly thereafter (which frequently occurs) the lawyers agree on written terms and when everyone has signed those terms the matter is concluded. Only in exceptional circumstances can there be an appeal, for example if someone fraudulently misled the proceedings. Otherwise the matter comes to an end unless of course the court is required to approve the terms agreed upon. Often, a short hearing at court is required at the request of one or both of the parties for the court to approve the terms of settlement. This can help to give certainty that the matter is forever resolved. After final orders, the matter can only be revisited in exceptional circumstances such as fraud.
8. What happens at mediation.
Mediation usually starts with a round table conference with everyone present. The representative of each team makes a statement putting his or her client's case. There is sometimes further discussion about the points raised and then each team goes into a separate room for private discussion. Throughout the day or half day of the mediation there are continuing attempts to settle the claim.
9. Settled at mediation.
If the claim is settled at mediation or shortly thereafter (which frequently occurs) the lawyers agree on written terms and when everyone has signed those terms the matter is concluded. Only in exceptional circumstances can there be an appeal, for example if someone fraudulently misled the proceedings. Otherwise the matter comes to an end unless the case is such that the court is required to approve the terms agreed upon.
10. Not settled at mediation.
If the matter does not settle at mediation the case will be listed for a hearing before a judge. In general terms (remembering every case is different) it might take 6 months to get to mediation and 12 months to get to a hearing).
11. Between mediation and a hearing.
Between the mediation and the hearing of the matter before a judge there are endless opportunities to settle the matter. Only as a last resort should anyone allow a case to go to a hearing (in our opinion). For countless reasons going to a hearing is like going into a casino. Frequently, only the lawyers win.
12. The hearing.
Each hearing is by a single judge who has discretion as to the possible orders he or she can make. You don’t know which judge you are going to get and each judge will have a different view of the case. You don’t know how witnesses are going to 'stand-up' under cross examination of their earlier written and sworn evidence. The size of the estate may no longer be as first thought and the circumstances of the participants may have changed.
13. Appeal Judges decision.
At the conclusion a disgruntled team can appeal the judge's decision and that will delay the distribution of the estate until the appeal is decided, which may be another 12 months or more. Accordingly, where possible, two experienced teams of lawyers opposing each other will always try their best to settle a claim rather than go to a hearing. There would need to be very exceptional circumstances before experienced lawyers would not settle at mediation.
14. Every case is different.
Every case really is different and that is why this law can be so complicated. There are traps and pitfalls everywhere for the inexperienced. Contesting a will firstly involves an agreement between all concerned that the will is valid. Only then can everyone concerned identify whether the will is fair. People frequently make many wills before their death so it is important to be looking at the last valid will and not be sidetracked by either earlier wills or invalid wills.
We trust the above information has helped.