The preliminary process of anticipating and considering how you want your assets to be distributed is referred to as ‘Estate Planning’. The final process of Estate Planning is completed once a valid and legally enforceable Will is in place.
Certain family members or eligible persons are entitled to make a claim against your Will in situations where your Will is valid but the provisions stated are inadequate. In such circumstances, the Court can make few alterations in your Will or can distribute your estate in the favour of those eligible persons.
Eligible Persons Who Can Claim in New South Wales (NSW) and Their Needs
Under Section 3 of the Succession Act 2006 (NSW Consolidated Acts) (the Act), eligible persons are those, who can make an application for a Family Provision Order before the Court, in respect of the estate or notional estate of a deceased person to provide maintenance, education or advancement in their life.
The Settlement Process
The 4 Alternative Dispute Resolution methods through which you can settle the claims on your estate are as follows:
Contested Will or Family Provision claims in most cases are settled before the matter reaches for the final hearing in the Court. The disputing parties try and resolve their conflicts between themselves.
The parties in conflict are represented by the negotiator who assists them to reach to a favourable possible outcome.
Offer of settlement
An offer of settlement is made by one party to the other to discontinue the claim and agree to the terms and conditions that are set forth in the offer.
If an offer of settlement is made with the end result being same or better than the offer, then the Court may Order the party who had received the settlement amount to bear the legal costs of the other party who had actually made the offer.
Mediation is a process where a neutral, third party is appointed as a Mediator to try and help the parties in dispute, to discuss about the problems and find possible solutions that may be acceptable to the parties and thereby reach a settlement.
Over 90% of the claims are settled either at or before the Mediation process. In that case the parties are not required to go to Courts for a settlement.
Before hearing the claims, the Supreme Court has the power to Order the parties to attend a Mediation process.
Instead of having the claim being determined by the Court, a party can also choose to settle the dispute through an Arbitration process, whereby the claim is heard and determined by an Arbitrator. The Arbitrator will hear the contentions of both sides and then will reach on a legally binding ruling.
If the claim does not settle either at Mediation or at Arbitration process, then one needs to apply to the Court as it is the last option available to the parties in dispute.
The application should be made to the Court soon after the death of the testator and before the assets in the deceased estate are distributed to the various beneficiaries in accordance to the Will.
The time period for contesting a Will varies from one State to another.
Our team at Owen Hodge Lawyers are adroit at dispute resolution through appropriate resolution methods and can help you to resolve your dispute by providing a hassle free settlement.