If you have been unfairly excluded from someone’s Will, you may wish to challenge that Will by making an Application to the Court. This Application would be asking for a portion, or a larger portion, of a deceased person’s Estate. This is known as a “Family Provision Claim”.

Alternatively, you may be the Executor or Administrator (also known as Legal Personal Representative) of a deceased Estate and someone has made a Family Provision Claim against the estate. Most people mistakenly think that the first step in a Family Provision Claim is to knock on the doors of the Supreme Court to attempt to assert your position in front of a Judge.

There are other, and at times more efficient, methods to resolve the dispute outside the Court that all parties involved can benefit from. One of these, is by way of negotiation. There are benefits to resolving your claim by negotiation including, but not limited to, reduced costs to the estate, less time and less stress for the Legal Personal Representative, beneficiaries and claimant/s. However, it is important to note that negotiation may not be suitable in all cases.

Step One

In the state of Victoria, once Probate or Letters of Administration have been granted a claimant has 6 months to make an application, or in other words give the estate notice of their intention to bring a Family Provision Application against the deceased estate.** It is for this reason that we advise all our clients, as representatives of the estate, not to distribute any assets before this 6-month period has lapsed. If they do, they may become personally liable for any loss suffered by a claimant who brings a successful Family Provision Claim.

Usually, a claimant would engage a lawyer to notify the estate or the lawyers acting on behalf of the estate, of their intention to make an Application. This notice would generally also include an offer of settlement, in order to commence the negotiation phase.

Step Two

Once the Notice of Intention has been received by the estate, the Legal Personal Representative is required to do the following:

  1. Consider the merits of the claim and evidence provided by the claimant;
  2. Consider what result would be in the best interests of all the beneficiaries, either in the Will or, if there was no Will, the beneficiaries under the Rules of Intestacy (which are the rules imposed by the government on how your assets will be distributed when you don’t have a Will) ; and
  3. The potential benefits of reaching a settlement outside Court by negotiation.

Case Example

Recently, we were approached by 4 individuals who had been excluded from their own mother’s Will. The mother had left a large portion of her estate to various charities, friends and extended relatives and failed to provide for any of her 4 children. There was no expression of wishes left by the deceased to explain this decision. We were instructed that the deceased and her children did not have a very close relationship, but they did not consider themselves to be estranged from their mother and they were shocked by their exclusion from her Will.

The children were eligible to make an Application to the Supreme Court of Victoria seeking a portion of their deceased mother’s Estate. With our advice, they elected to commence the negotiation process with the Executor of their mother’s estate, which happened to be a Public Trustee.

Our Notice of Intention to make a Family Provision Claim was put forward to the Public Trustee, along with our evidence, and the outcome we were seeking from the Application.

Adopting the above method, the Executor made the relevant considerations and we were able to negotiate a favourable resolution, potentially saving the estate thousands of dollars that would have been required to respond to the claim via the Court process. The children each received a significant provision from the estate, despite having originally been excluded entirely.

The Last Resort

Not all matters will resolve by negotiation without intervention from the Court. Although our firm “motto” at Tonkin Legal Group is, Court is always the last resort, if negotiation is unsuccessful the claimant must file Court proceedings. The Court may order that the parties participate in a mediation in an attempt to resolve the matter. If there is still no resolution, the matter will go to trial. The Legal Personal Representative is then required to distribute the estate based on the Final Orders issued by the Court.

If you are considering a Family Provision Claim, or you are an Executor of Administrator of an Estate that needs to respond to a claim, contact one of the members of our Wills and Estates team to discuss your options.