Defending a Family Provision Claim: Guidance for NSW Executors

As an executor, you carry the important and often complex responsibility of carrying out the wishes set out in a deceased person’s Will. If you are defending a Family Provision Claim in NSW, this role becomes even more challenging. A claim arises when someone argues that the deceased did not adequately provide for them.

In this situation, your duty is to defend the Will and protect the estate for the beneficiaries. When defending a Family Provision Claim in NSW, you must also participate appropriately in the proceedings and follow any court directions. This may involve negotiating the settlement of a meritorious claim to avoid costly litigation that could deplete estate assets.

This article explains your duties and outlines the process for defending a Family Provision Claim in NSW. This information is general in nature and does not constitute legal advice. Executors involved in an estate dispute should engage an experienced wills and estates lawyer.

What is a Family Provision Claim?

An eligible person can make a Family Provision Claim by applying to the Supreme Court of NSW. They ask the Court to order that they receive a share, or a larger share, of the deceased person’s estate. They base the claim on the argument that the Will, or the intestacy rules where there is no Will, did not provide for them adequately.

In NSW, the Court may intervene if it is satisfied that an eligible person has not received adequate provision for their proper maintenance, education, or advancement in life. These claims can be complex and emotionally challenging for everyone involved.

Who is an ‘Eligible Person’ in NSW?

The law defines specific categories of people who may bring a Family Provision Claim. These generally include:

• The deceased person’s spouse or de facto partner at the time of death.
• A child of the deceased, including an adult child.
• A former spouse of the deceased.
• A person who was wholly or partly dependent on the deceased at any time and is either a grandchild of the deceased or a member of the same household.
• In some circumstances, a person who was living in a close personal relationship with the deceased at the time of death.

The Executor’s Duty in Defence

When someone files a Family Provision Claim, they usually serve it on the executor. Your primary duty is to uphold the terms of the Will and respect the deceased’s wishes. You must also act reasonably and responsibly to protect the estate’s assets.

Lengthy court proceedings can quickly drain estate funds. This reduces what remains for the beneficiaries, including the claimant if the Court ultimately awards them provision.

1. Act Promptly and Seek Legal Advice

You should seek legal advice from a lawyer experienced in estate disputes as soon as possible. A claimant must generally file a claim within 12 months of the deceased’s death. You should act immediately once you receive notice of a claim.

Your lawyer will assess the strength of the claim and advise you on the best course of action. This may involve mounting a strong defence or seeking an early resolution.

2. Do Not Distribute the Estate

You should stop all distributions from the estate until the claim is resolved. If you distribute estate assets and the claimant later succeeds, you may become personally liable for the provision ordered by the Court. Preserve the assets until the claim is finalised or the Court provides directions.

3. Communicate with Beneficiaries

You must keep beneficiaries informed about the claim, the legal process, and any settlement offers. Their inheritance is at risk. Clear communication helps manage expectations and maintain transparency.

Gathering Your Evidence

To defend the claim, you must gather evidence that supports the deceased’s intentions and explains why the Will made appropriate provision. You will usually present this evidence in a formal Affidavit.

Key Documents to Collect:

• The Will and any previous Wills, if relevant.
• Detailed information about the estate’s assets and liabilities to confirm its net value.
• Evidence about the claimant’s relationship with the deceased, such as letters, emails, or statements from people who knew them.
• Documents that explain the deceased’s reasons for making the Will in its current form, including a signed statement of wishes or the drafting solicitor’s file notes.
• Details of any significant gifts or financial support the deceased provided to the claimant during their lifetime.
• Information about the financial circumstances and needs of the beneficiaries named in the Will, as the Court weighs their needs against the claimant’s.

The Path to Resolution: Mediation

Courts strongly encourage parties to resolve Family Provision Claims through mediation. In most cases, the Court requires mediation before a final hearing.

During mediation, both parties and their lawyers meet with an independent mediator to negotiate a settlement. Many claims resolve at this stage. Mediation offers several potential benefits:

• Cost-saving: Mediation is usually faster and significantly cheaper than a court trial.
• Reduced stress and greater flexibility: The parties can negotiate their own agreement and avoid the uncertainty of a judge’s decision.
• Less formal: Mediation is generally less confronting than adversarial court proceedings and may help preserve relationships.

As executor, you attend mediation to represent the estate. Your lawyer will help you assess the risks of proceeding to a final hearing versus accepting a reasonable compromise. You must act in the best interests of the estate and its beneficiaries and avoid unnecessary legal costs.

A Note on Legal Costs

In most cases, the estate pays the reasonable legal costs you incur when defending a Family Provision Claim. You incur these costs while performing your legal duty to protect the Will.

However, the Court may make a different costs order if it finds that you acted unreasonably. For example, this may occur if you refused a fair settlement offer or conducted the litigation aggressively without justification.

Key Takeaways for NSW Executors

• Get legal advice immediately: Contact a lawyer who specialises in estate litigation as soon as you receive notice of a claim.
• Stop all distributions: Do not distribute estate assets until the claim is fully resolved.
• Act reasonably: Uphold the Will while protecting the estate from excessive legal costs.
• Gather evidence: Collect all documents that support the deceased’s intentions and the provisions of the Will.
• Prepare for mediation: Attend mediation ready to pursue a practical and cost-effective resolution.

Facing a Family Provision Claim can feel daunting. With clear legal guidance and a commitment to acting reasonably, you can navigate the process and fulfil your duties as executor.

This is general information only and does not constitute legal advice.