In my last post on contesting a will or estate I discussed family provision claims against deceased estates. In this post I will go further by talking about what is often involved in making this type of claim.

As always, the procedure that I will be discussing is that of South Australia and both the law and the procedure will differ elsewhere.

The first step is normally to obtain a copy of any current will and details of the assets and liabilities of the estate, because these shed light on the size of the estate, who the executor(s) and beneficiaries of the will are, and whether any provision has been made for the potential claimant.

After that, there is usually a short period of negotiation between claimant’s lawyer and the lawyers for the executors and beneficiaries.

The reason that it is short is because South Australian family provision claims must be made and served upon the executor(s) within 6 months of a grant of probate or letters of administration being made. If there are interstate assets then the limitation periods in those other states may also be relevant. A grant is not usually made for at least a few months after the date of death.

If those negotiations are not successful then the claimant proceeds by filing an action in the Supreme Court. The executor(s) and any beneficiaries who stand to lose from the claim are made defendants to the action.

The action itself is brought by the claimant filing with the court either a formal statement of claim or an affidavit setting out the circumstances of their claim (usually the latter). That document is then served on the executor(s). If the executor is not served within the 6 month time limit, then an extension of time can still be sought, but only that part of the estate (if any) that has not already been distributed can be claimed against.

There are a few procedural steps that also have to take place at the start of the matter:-

  • When filing the claim, the claimant must file an affidavit setting out details of all of the beneficiaries and other potential claimants.
  • The claimant must then give notice of the action to those potential claimants, so that they can choose whether or not to also bring a claim.
  • The executor will then file a notice of address for service and possibly a defence in response to the claimant’s action.
  • The executor must also file an affidavit setting out the assets and liabilities of the estate and attaching a copy of the grant.

The court will list the action for an initial hearing where the parties’ lawyers attend at court to organise how the action should proceed.

The settlement conference
Negotiations do not stop when the action is filed, but are instead an ongoing process. Most negotiation occurs through correspondence between the lawyers, and similarly most of the court work occurs without the need for the parties to attend at court themselves.

But there are two main court events where the parties do have to be present: the settlement conference and the trial.

At the settlement conference, the parties attend at court for a more formal opportunity to negotiate. The negotiations are still conducted by the lawyers, but because everyone is there at the same time it is possible to make many offers and counteroffers quickly.

It is not at all uncommon for the settlement conference to occur more than a year after the death, and by which point the parties have been negotiating for a long time. In practice, a great many claims are resolved at or shortly after the settlement conference.

If a settlement cannot be reached at the conference, then the court process turns its focus to preparing for trial.

The trial
The trial may be conducted in the normal way or it may be determined summarily.

In a normal trial evidence has to be obtained in a formal way. Presenting evidence before the court involves barristers asking witnesses (including the parties) question after question in order to draw out the facts through testimony and to establish the admissibility of documents.

With summary determinations, the court receives evidence less formally. What usually happens is that before the trial the parties file lengthy affidavits setting out their evidence. If there is a dispute about the evidence in the affidavits then the parties/witnesses are still cross-examined, but the process is much simpler and faster (but less rigorous).

If the size of the estate, after all liabilities and costs, is likely to be relatively small ($500,000 or less as at March 2016) then the court will prefer to conduct the trial summarily in order to limit the parties’ overall costs.

The act of settling or having the claim determined is often not quite the end of the matter.

In many cases it will take time for the executor to carry out the terms of the settlement or order, possibly several months.

Additionally, if the parties’ costs haven’t been agreed upon, then the court often has to adjudicate how much of the parties’ costs should be paid, which unfortunately can also be a lengthy process.

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