WHAT ARE THE USUAL STEPS INVOLVED FOR CONTESTING A WILL QLD BY A FAMILY PROVISION APPLICATION?

Many FPAs resolve at the mediation stage. Parties realise by resolving the matter at this stage avoids the significant costs of going to trial. Trials are expensive and can be stressful for all involved. A resolution before trial means parties can have some control over the outcome, rather than leaving it in the hands of a Judge. Going to trial is like a lottery, you never know for certain what the outcome will be.

If you are a potential Applicant, or Executor who will be defending the Will, we have detailed the steps usually involved for an FPA.

 

STEP 1 – within 6 months from the date of death of the deceased.

The Applicant must give the Executor written notice of their intention to make an FPA claim.#1e3a6

 

STEP 2 – within 9 months from the date of death of the deceased.

The Applicant must file their FPA in the Court along with their supporting affidavit for the claim. The application and supporting affidavit must be served on the Executor with a draft Directions Order. The draft Directions Order sets out the proposed timeline of events for the FPA.

 

STEP 3 – within 14 days of being served the Application, the Applicant’s Affidavit and the draft Directions Order.

The Respondent must:

 

1. Sign and return the draft Directions Order to the Applicant or his/her lawyers; or

 

2. Tell the Applicant or his/her lawyers of anything in the draft Directions Order they do not agree with and put forward an alternative.

 

STEP 4 – within 7 days of receiving a signed Directions Order from the Respondent

The Applicant must file the signed Directions Order in the Court.

 

STEP 5 – Date as agreed in the Directions Order

The Executor must serve a copy of all court documents (including the Application, the affidavit by the Applicant and the Directions Order) on all persons who may be impacted by the FPA. These persons will be listed in the Directions Order.

 

STEP 6 – Date as agreed in the Directions Order

Any person served with court documents by the Respondent who wants to be separately represented must file and serve a Notice of Address for Service. If the person wants to apply for provision from the Estate, then they must say this in the Notice.  

 

STEP 7 – Date as agreed in the Directions Order

Any persons who choose to be self-represented must file and serve their affidavit on all parties.

 

STEP 8 – Date as agreed in the Directions Order

The Executor files in the Court and serves on all parties any affidavits they intend to rely upon.

 

STEP 9 – Date as agreed in the Directions Order

The Executor and the Applicant can file and serve any further affidavits they intend to rely upon.

 

STEP 10 – Date as agreed in the Directions Order

If the parties have lawyers a “without prejudice” meeting will be held, usually by telephone. The purpose of the meeting is to narrow any issues in dispute and to try to settle. 

 

STEP 11 – Date as agreed in the Directions Order

If the claim does not settle at the “without prejudice” meeting, then a mediation is held. The purpose of the mediation is for the parties to try to settle.  

 

STEP 12 – Date as agreed in the Directions Order

If the parties do not settle at mediation or subsequently, then the matter will be listed for trial before a Judge. The FPA can still settle anytime up to and during the trial.