Family Provision

Evaluating Claim Prospects

When evaluating the prospects of a family provision claim, our estate litigation lawyers conduct a comprehensive assessment considering multiple factors.

We carefully analyse the nature and quality of the applicant’s relationship with the deceased, examining aspects like financial and emotional support, frequency of contact, and any periods of estrangement.

The applicant’s financial position and needs, both current and future, are thoroughly evaluated, including their assets, income, debts, health status, and ability to support themselves. We also scrutinise the size and nature of the estate, identifying all assets and liabilities to determine the pool available for distribution.

The competing claims of other beneficiaries or potential applicants are weighed, considering their financial circumstances and relationship with the deceased.

We examine any contributions the applicant made to the deceased’s property or welfare, whether financial or non-financial.

The deceased’s wishes, as expressed in their will or other statements, are considered, though not determinative.

We assess any evidence of the deceased’s reasons for making or not making provision for the applicant.

Our lawyers also consider factors that may weaken the claim, such as estrangement, disentitling conduct, or adequate provision already made through lifetime gifts or non-estate assets.

The applicant’s character and conduct are evaluated, as the court has discretion to refuse an application based on disentitling behaviour. We analyse relevant case law to gauge how courts have decided similar cases, while recognising that each case turns on its unique facts.

By examining all these elements, we provide a realistic assessment of the claim’s strengths and weaknesses, the likely range of provision if successful, and the risks and potential costs involved in pursuing the claim. This thorough evaluation enables us to advise clients on the best course of action, whether that be negotiating a settlement or proceeding to litigation.

Commencing Proceedings

When you’re ready to pursue a family provision claim, our estate litigation lawyers will guide you through the process of commencing proceedings.

We will consider the appropriate court to file your application, whether it’s the Supreme Court or District Court, based on the value of your potential claim. Our team will prepare a comprehensive originating application that complies with all legal requirements, including the specific content mandated by Supreme Court Practice Direction No. 8 of 2001.

We’ll ensure your application is filed within the critical 9-month time limit from the date of death or seek an extension if necessary.

Our lawyers will also prepare a detailed supporting affidavit addressing all required matters, along with a draft directions order to streamline the court process. We’ll identify the appropriate respondents, typically the estate’s personal representatives, and consider whether any parts of the estate should be exonerated from your claim.

Throughout this process, we’ll explore opportunities for negotiation and settlement, always keeping in mind the value of the estate, the strength of your claim, and potential legal costs. Our goal is to commence your proceedings in a thorough and strategic manner, setting the foundation for a successful family provision claim.

Negotiation and Mediation

At ROC Legal, we understand the emotional and financial toll that family provision claims can take on all parties involved. That’s why we strongly emphasise negotiation and mediation as effective means of resolving disputes without the need for costly and time-consuming court proceedings.

Our estate litigation lawyers are skilled negotiators who will work tirelessly to achieve a fair and equitable outcome for you through out-of-court settlements. We facilitate productive discussions between all parties, aiming to find common ground and mutually beneficial solutions. If direct negotiations prove challenging, we can arrange for professional mediation services, where a neutral third party helps guide the conversation towards resolution.

Our goal is always to reach a satisfactory agreement efficiently, preserving family relationships where possible and minimising legal expenses. However, rest assured that if negotiations fail, we are fully prepared to advocate vigorously for your interests in court.

Defending Claims

Our experienced estate litigation lawyers are well-equipped to assist executors in defending family provision claims.

We understand that executors have a duty to uphold the wishes of the deceased as expressed in their will, while also ensuring the estate is administered fairly and in accordance with the law. Our team will assess the merits of any claim made against the estate, considering factors such as the nature of the relationship between the applicant and the deceased, the size of the estate, the financial circumstances and needs of the applicant and other beneficiaries, and any relevant conduct or character issues.

We will guide executors through the complex legal process, helping them gather and present all necessary evidence to support the estate’s position. This may include financial records, correspondence, and witness statements that demonstrate the deceased’s intentions and reasons for their testamentary decisions.

Our lawyers are skilled in negotiation and mediation, and will explore opportunities for out-of-court settlement where appropriate to minimise costs to the estate. However, if litigation becomes necessary, we will defend the claim in court, leveraging our deep knowledge of family provision law and relevant case precedents.

Throughout the process, we will advise executors on their legal obligations and potential personal liability, ensuring they fulfill their duties to the estate while protecting their own interests.

Our team will also assist in managing communication with beneficiaries and claimants, helping to navigate potentially fraught family dynamics.

By engaging our expert lawyers, executors can be confident that the estate’s interests are being protected by professionals who understand the nuances of family provision claims and the most effective strategies for defending against them.

Expert Evidence

Where required, we can obtain expert reports on matters like property valuations or your future financial needs to strengthen your case.

With our in-depth knowledge of family provision law and court processes, we provide comprehensive support to help you achieve a fair outcome. Contact us today for an initial consultation on your family provision matter.