If you are an executor named in a Will, your role is to defend the Will if an applicant contests it, that is, makes an application for provision or further provision from the deceased person’s estate.
If there is no will, then the Supreme Court of NSW can appoint an administrator to defend a Family Provision Application.
In NSW, an applicant has 12 months from the date of death to bring a claim for provision from the deceased’s estate. An application is commenced by filing a Summons in the Supreme Court of NSW.
After the applicant commences proceedings, the applicant is required to serve the defendant with a copy of the Summons and his or her supporting affidavits. An affidavit is a written statement used in Court proceedings.
The defendant is then required to file an appearance and must serve notice of the application on all persons who are or may be eligible to make claims on the deceased’s estate.
In addition, the defendant is required to file and serve affidavits. The defendant’s affidavits provide details regarding the nature and value of the deceased’s estate, the deceased’s testamentary intentions and the costs of the proceedings. The defendant also has the opportunity to respond to the applicant’s affidavit.
Once an application has been filed, it will be listed for directions in the Supreme Court of NSW. The first directions hearing is normally about 28 days after the date the Summons is filed.
The defendant is not required to attend the directions hearing in person, provided that they have engaged a legal representative to appear on his or her behalf. If the defendant has not engaged a lawyer, then they will be required to appear in person at the directions hearing.
The Judge will set a timetable at the first directions hearing, which includes dates for the filing and service of affidavit evidence. Once all affidavit evidence has been filed, the Judge may refer the matter to an alternate dispute resolution conference, such as a mediation or settlement conference, at the request of the parties.
If the matter cannot be resolved at an alternative dispute resolution conference, further evidence will likely need to be filed. Thereafter, the matter will be listed for a Court hearing before a Judge.
If you are involved in an estate dispute, we can help you. Our lawyers regularly act for defendants in proceedings involving Family Provision claims. We are able to advise you regarding how best to defend a claim. Please call us on (02) 9101 7000 to have a discussion regarding estate disputes and defending a Will.
by Maree Harris