The procedure for NSW Family Provision claims in 2018
Written on the 5 March 2018 by Mary Windeyer
This is a presentation on the procedure for Family Provision claims in New South Wales in 2018.
My name is Mary Windeyer and I'm a solicitor at Turnbull Hill Lawyers.
Claims for family provision are managed in the Supreme Court in accordance with the Family Provision Practice Note which sets out the procedure to be followed and is divided into four main stages.
The first stage is commencing proceedings. The plaintiff commences proceedings by filing a summons and other documents in the Supreme Court by paying the filing fee, which currently stands at $1101, and serving the documents on the named defendant who is usually the executor or administrator of the estate.
The second stage is the first directions hearing before the Family Provision List Judge, and usually takes place within a month of commencing proceedings. At the first directions hearing, the Family Provision List Judge orders a timetable for the defendant to file affidavit evidence, usually within the next four weeks.
Stage Three is alternate dispute resolution. Depending on the size of the estate all claims for family provision will be referred to alternate dispute resolution which may take one of three forms. It may take the form of a judicial settlement conference, it may take the form of a quarter next mediation, or it may take the form of a private mediation.
Stage Four: Matters which fail to settle by alternate dispute resolution will be relisted before the Family Provision Judge who may make orders for filing further evidence and thereafter list the matter for hearing in approximately six months' time. The plaintiff will be required to pay the hearing allocation fee which currently stands at $2,197.
At the final hearing the judge will determine the outcome of the proceedings after hearing all the evidence in accordance with the Rules of Evidence having regard to Section 56 of the Civil Procedure Act which codifies the overriding purpose of just, quick and cheap resolution of court matters.
It is pleasing that approximately 90% of claims for family provision are resolved without recourse to a hearing.
Author: Mary Windeyer