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:
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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