If you are considering making a Family Provision Act claim you should see a lawyer as soon as possible. Preparing your claim is no easy task, particularly if there is a looming limitation date.
The best approach, irrespective of the fact that 95% of these types of matters settle at mediation, is a careful and considered one. Evidence properly led at the outset can enhance the prospect of an early settlement and therefore have a substantial effect on the overall costs incurred on your matter. This type of litigation is usually very emotionally charged and destructive to family relationships, so an earlier settlement may also avoid prolonged stress and anxiety.
Certain factors need to be addressed by way of affidavit evidence. The affidavit is a form of sworn evidence and its content are every bit as important as evidence given in the witness stand. Any inconsistencies, or failures to address certain matters, will be seized upon by the other side and used to attack your credibility as a witness. At its worst, poorly led affidavit evidence could result in you being unsuccessful in your claim.
The following are the matters that must be addressed:
- How the estate is to be disposed of.
- That the disposition of the estate was not such as to make adequate provision (at the date of death) for your proper:
- education; and/or
- advancement in life.
- What provision would be adequate for your proper maintenance, support, education or advancement in life (as at the date of the affidavit).
Element 2 is the most involved area, as it requires your lawyer to form a view on what would have constituted proper maintenance, support, education or advancement in life as at the date of death of the deceased, considering a number of factors such as:
- your financial position;
- the relationship between you and the deceased;
- the size of the estate; and
- the competing claims against the estate.
Gathering that material can take some time, hence the need to contact your lawyer as soon as it becomes apparent that you need to consider a claim.
The Supreme Court of WA has also made certain directions regarding how your evidence needs to be led. Your financial position must be led in “statement” form and the claim itself must specify the relief that is sought (and from where in the estate it is to come from). Avoiding irrelevant information about long-term family disputes (unless it is somehow relevant to a period of estrangement or alleged disentitling conduct) remains the most difficult challenge.
Commencing the claim is the most important step you will take in your Family Provision Act matter. A good practitioner should be able to guide you through the most effective approach to your evidence in the context of your unique circumstances.
For more information on this Update or any other contentious trust and estate matter please contact associate Claire Hawke-Gundill on (08) 9321 3755.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.