Defending Claims against Deceased Estates, Mediation and Deeds of Family Arrangement
We have a team of experienced lawyers who regularly act for estates in defending claims for provision under the Succession Act 2006 (NSW) by beneficiaries and other persons who may have been left out of a Will.
Executors and trustees of estates are entitled to be indemnified for all costs properly incurred in relation to proceedings concerning the estate.
Proceedings are filed in the Supreme Court or District Court of New South Wales by way of Summons and the Court will issue a timetable for the parties to put on evidence. Evidence is submitted by way of affidavit and can be substantial.
The legal personal representative of the estate will be required to swear or affirm an affidavit setting out the details of the deceased person, the assets of the estate and their value, what amounts have been distributed and the net value of the estate available for distribution after costs and taxes have been paid.
The parties will also generally have to put on evidence as the history of the family, the relationships between the deceased and any relevant persons, the income, assets, liabilities and expenses of the claimant and any person whose entitlement under the Will could be adversely affected by a family provision order made
Prior to a hearing, most claims made are referred to a mediation, unless the Court for special reasons otherwise orders. The majority of claims do settle at Mediation. This is due to various reasons including:
- The continuing need for family members to interact
- The risks of litigation in that one party will win and the other will lose
- The Costs of running a matter to a hearing, such as barristers’ fees
- Avoiding attending Court to give evidence and be cross-examined
- Wanting finality to a difficult period
- Avoiding personal details and events being disclosed in a public courtroom
Cases are generally settled by the filing of Terms of Settlement or Short Minutes of Order outlining the main points of the agreement that was reached.
In some cases, either in addition to or substitution for having orders made by consent, the parties to the dispute and all beneficiaries and other potential claimants come to more detailed arrangements in relation to the administration and distribution of estates. Such documents are routinely called Deeds of Family Arrangement.
A Deed of Family Arrangement need not be entered into after proceedings are commenced in relation to a deceased person’s estate. They can be entered into at any time in an endeavour to avoid estate litigation and the risks and costs associated with it.
We have a great deal of experience in advising executors and trustees on the prospects of claims being made against the estates they are administering, attending mediations and running contested hearings.