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Cost Effective Resolution of Family Provision Claims in Victoria

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Family provision claims are a common occurrence in Melbourne and throughout Victoria. These claims are a fact of life. The new procedures in the County Court prioritise quick and cost-effective resolution of TFM (Testators Family Maintenance) proceedings, saving time and money for the parties and affected beneficiaries.  

The County Court’s New Practice Note PNCLD-2021

With the streamlined procedures introduced under its new Practice Note PNCLD-2021 (Practice Note), the County Court now offers a quick, efficient alternative to the Supreme Court for claims against deceased estates.

The County Court’s new streamlined procedures are designed to cut the costs of contesting a will for all parties.

Can I bring my family provision claim in the County Court?

Any family provision claim in Victoria can be made in the County Court. That said, the County Court is particularly targeting cases:

  • Where the value of the estate is less than $2.5m;
  • Where the amount claimed is less than $800,000;
  • Which are suitable for mediation by a private mediator;
  • With an estimate of trial duration of less than 5 days;
  • Where the estate is a simple one; and
  • Where legal costs to the conclusion of mediation are not expected to exceed $10,000 and $35,000.

What are the County Court’s Streamlined Procedures for Claims against Deceased Estates?

The procedures are designed to reduce the costs of family provision disputes by:

  • Eliminating unnecessary and expensive procedural hearings through the use of online administrative mention;
  • Having a single email contact at the Registry;
  • Using standard timetabling orders;
  • Requiring each party to set out its case in a short position statement capped at no more than 6 pages;
  • Referring all matters to mediation at the earliest practical date through the use of low cost capped fee mediators in smaller estates;
  • Eliminating costly and wasteful affidavits;
  • Having the parties give evidence orally at hearing;
  • Requiring all parties to disclose their legal costs up front which are then checked for reasonableness before any settlement is approved; and
  • Allocating early final hearing dates.

How does Mediation of Family Provision Claims work in the County Court?

Under the Practice Note, all wills dispute in the County Court are now referred to a court ordered mediation before hearing.

A mediation is a settlement conference. The parties choose the mediator and share the cost. The claimant, the executor and affected beneficiaries attend. Zoom mediation of will disputes has become the norm but in-person mediation of estate disputes is common too. The mediation is confidential and without prejudice. Nothing said at the mediation can be used later if the case does not settle. A whole day is normally set aside. If a settlement can be reached, any agreement is normally drawn up and signed on the day of the mediation. The vast majority of will challenge disputes in the County Court settle at mediation.

The County Court also offers a low-cost mediation scheme whether the asset pool is less than $500,000. In estates of this size the Court can make a referral request for a mediator experienced in TFM mediation at a low-cost capped fee rate.

Will Lodging my Claim against the Estate in the County Court affect how much my Family Provision Claim is worth?

No. The law is the same wherever the claim is issued.

How are the Streamlined Procedures for Claims against Deceased Estates working in practice?

In our experience, the new procedures for wills disputes in the County Court introduced in 2021, have resulted in:

  • More efficient handling of TFM claims by the Court;
  • Quicker and cheaper resolution of family provision claims;
  • Cost saving through the use of short 6 page position statements;
  • Early referral to Court ordered mediation;
  • Most cases settling at early mediation;
  • Early hearing dates; and
  • Less wills dispute legal costs for all parties.

How we can help

We are experienced family provision claim lawyers with a proven track record of working through wills disputes with a broad range of clients to achieve positive outcomes.

We can help you by:

  • Providing you with advice about your rights and obligations;
  • Assisting you to negotiate a resolution regarding contesting a will; and
  • Representing you at the County Court in any proceeding relating to family provision claim.

 

andrew-o-bryan

Andrew O'Bryan

Partner

 

carl_wilson

Carl Wilson

Senior Associate

If you are involved in a wills dispute and are unsure how best to resolve it please get in touch with wills dispute lawyers Andrew O'Bryan or Carl Wilson on 9200-2533 or send us an email at aobryan@galballyobryan.com.au or cwilson@galballyobryan.com.au.