Family Provision Claims
Mediation is a requirement under the Act and, as in most mediated legal disputes, settlement is reached in about 75% to 80% of matters, either at the mediation or shortly thereafter.
The mediation can be through a Court-annexed mediation, in which case the Court provides a timetable of available dates which are taken on a first come/ first served basis. If the parties intend to use private mediation services, the Plaintiff and the Executor/Defendant should have agreed on the name of mediator and date of mediation so they can inform the Court at the First Directions Hearing. In estates valued at less than $200,000 the Court may not require mediation but will diect the parties to engage in an informal settlement conference.
If a matter does not settle at mediation then the Plaintiff and the Executor/Defendant must file updated affidavits in regards to costs. The Plaintiff affidavit must include a costs estimate calculated on the ordinary basis as well as on an indemnity basis and identify any uplift in fees.
If a matter does settle at a mediation or an informal conference, any request for consent orders should include orders about: how any provision is to be shared by the beneficiaries, how the Plaintiff's and Exector/Defendant's costs are to met, the parties agree that the Plaintiff was an eligible person, the claim was filed within time, that the Schedule J affidavit of Practice Note Eq 7 has been filed and that eligible persons have been served.
Practice Note Eq 7 includes commentary that a party's costs may be capped where the estate is valued at less than $500,000. The resources of the estate and the Court are not to be used in a way that is out of proportion to the estate size and the provision that may be made.
There are two recent Court decisions that attention should be drawn to: in Ireland v Retallack; Estate of Gordon  NSWSC 846 Pembroke J remarked that an estate should not be used as a "milch cow"; and in Mikan v Velcic (No 2) (2011) NSWSC 505 Hallen J commented that the parties cannot pursue a Family Provision claim safe in the belief that the costs will always be paid out of the estate.
Other Forms of Claims Against an Estate.
In certain cases, a Plaintiff may have an equitable estoppel claim against the estate with a default family provision claim. In these cases the Plaintiff needs to file a Statement of Claim, and not a Family Provision Summons, setting out the basis of both claims in the General Equity List. Where a claim is a contested probate claim with a default family provision claim then again the Plaintiff must file a Statement of Claim and have the matter listed in the Probate List.