Each legal matter is unique, turning on its own facts and circumstances – but no matter those issues, family provision claims tend to follow a relatively standard process imposed by the courts designed to efficiently manage the estate litigation process. The following summary sets out some of the relevant timeframes and procedures any family provision applicant ought to be mindful of for Queensland matters.
Step 1 – Contact us to discuss your matter
Usually the first step will be to contact us for a free, no obligation consultation to discuss your eligibility and the merits of your family provision claim. We will investigate the merits of your potential claim and may offer preliminary advice on that matter, and let you know how we can assist. Our investigations will concern matters such as:
- The terms of the deceased’s will;
- The composition of the deceased’s estate (both assets and liabilities);
- Your financial position; and
- Your relationship with the deceased person.
Step 2 – Notice of Intended Claim / Filing your Further Provision Application
Under Queensland succession law, any intended further provision applicant must give notice in writing to the executors of their intended claim within 6 months of the date of the deceased person’s death. If an applicant fails to do so, then the executors may lawfully distribute the estate and defeat your potential claim. Even where that notice has been given, it doesn’t stall the process, and you are required to file court proceedings within 9 months of the date of death (and again, if you fail to do so, then the executors can lawfully distribute the estate and defeat your potential claim). Whilst applications can be made out-of-time (that is, more than 9 months after the date of death), in those circumstances the court must be convinced that there was a proper reason for the delay and that it is appropriate to allow it to proceed.
Step 3 – Preparing and Service of Affidavits by Parties
In conjunction with filing your claim, your affidavit (your sworn statement of evidence) is filed outlining the relevant circumstances and detailing the basis why you say further provision ought to be made for you. Generally, at this time, a directions order is agreed between the parties outlining the timeframes by which each party is to file affidavit evidence, as well as notify any affected beneficiaries.
Step 4 – Settlement Conference and Mediation
Once each party has provided adequate evidence, the parties’ legal representatives generally take part in a telephone settlement conference, to discuss potential resolution of the matter. If that is unsuccessful, the matter generally proceeds to a mediation (where most further provision claims are resolved), with each of the parties, their legal representatives and an independent mediator (generally an experienced barrister) attempt to resolve the matter, including the legal costs of the parties.
Step 5 – Preparation for Trial and Trial
If the matter remains unresolved after mediation, then the matter is generally set down for trial and hearing before a judge. This step entails significant preparation work, assembling any further supporting evidence for court, and then taking part in the court hearing, and awaiting delivery of judgement by the court, which will generally include orders concerning payment of the parties’ legal costs.