Defending a Family Provision Claim

When a Claim Is Made Against an Estate

A family provision claim is brought under Part IV of the Administration and Probate Act 1958 (Vic). It is usually preceded by correspondence from the applicant's solicitor identifying the basis on which they say their client is an "eligible person" and seeking information about the estate. A formal originating motion is then filed in the Supreme or County Court, naming the executor as defendant.

From that point the estate is on notice. Distributions should be paused, the executor's lawyer should be engaged, and the file should be approached as litigation, not estate administration.

The Role of the Executor

The executor's job is to defend the estate, not to advocate for a particular beneficiary. That distinction matters. The executor must:

• put the relevant facts and evidence before the Court fairly;
• maintain a neutral stance between competing beneficiaries;
• keep major beneficiaries informed about the progress of the claim;
• avoid taking sides in the underlying family dynamic; and
• consider, at every stage, what is in the best interests of the estate as a whole, including the cost and uncertainty of continuing.

An executor who has a personal interest as a beneficiary needs to be especially careful. If the executor's personal interest is materially affected, separate representation for that beneficial interest is sometimes appropriate.

Gathering Evidence

The executor's first substantive task is to assemble the evidence the Court will need. Typical sources include:

• the Will, any earlier Wills and any contemporaneous statements of reasons;
• the deceased's correspondence, file notes from meetings with their lawyer, and any letters of wishes;
• the deceased's financial records — assets, liabilities, superannuation, life insurance, jointly held assets and non-estate assets;
• records of any gifts, loans, support or assistance provided by the deceased during their lifetime to the applicant and other beneficiaries;
• evidence of the relationship between the applicant and the deceased — including periods of estrangement, reconciliation, care provided and contact;
• financial circumstances of the major beneficiaries (where they are competing claimants); and
• an updated estate valuation, including any properties that may need to be sold to fund a settlement or order.

Testamentary Intentions

The deceased's intentions are central. The Court is not bound by the Will but it does take seriously the deceased's settled view about how their estate should be distributed.

That is why a well-prepared estate plan often includes a short, contemporaneous statement explaining the deceased's reasoning — particularly where an obvious applicant has been excluded or has received less than might be expected. A statement that is calm, dated and consistent with other evidence carries weight; one that is angry or contradicts earlier conduct may achieve the opposite.

Financial Circumstances of Beneficiaries

The financial position of the major beneficiaries is relevant — not because the Court is reallocating wealth, but because adequate provision is assessed against the backdrop of competing legitimate claims. A beneficiary in modest circumstances has a stronger claim to retain their share than one in comfortable circumstances.

Where the major beneficiaries are willing to provide evidence about their position, that material should be put forward in an organised way. Where they are not, the executor and their lawyer should still ensure the Court has a fair picture of the competing interests.

Mediation and Settlement

In Victoria, family provision matters are routinely referred to mediation early in the proceeding. Mediation is confidential, without prejudice and conducted by an independent mediator. It gives the parties a structured opportunity to settle the dispute on commercial terms, rather than running the cost and risk of a trial.

The majority of claims resolve at, or shortly after, mediation. A typical settlement involves:

• a payment to the applicant out of the estate, often funded by the sale of an asset or contribution from beneficiaries;
• an agreed treatment of legal costs;
• releases by the applicant of all further claims; and
• a deed of family arrangement or consent orders giving effect to the settlement.

For more on how settlements are documented, see our companion article on deeds of family arrangement in Victoria.

Court Proceedings

Where a matter cannot be resolved, it proceeds to trial. Family provision trials are typically heard on affidavit evidence with limited cross-examination, and run for one to three days. The judge applies the two-stage test — whether adequate provision has been made and, if not, what provision ought to be made — and makes orders that bind the estate.

Even at trial, the executor should remain neutral. The executor's lawyer puts the evidence before the Court, tests the applicant's case where appropriate and assists the Court in arriving at a sensible outcome. The executor is not there to argue that no provision should be made at all costs.

Costs Considerations

The historical assumption that the estate pays everyone's costs no longer applies in Victoria. The Court will consider:

• the merits and size of the claim;
• any settlement offers exchanged and their terms;
• the conduct of the parties; and
• whether the proceeding was reasonably brought and reasonably defended.

An executor who defends an unmeritorious claim efficiently may recover costs out of the estate or against the applicant. An executor who runs every point on principle, when settlement was sensible, risks being denied indemnity from the estate.

Common Mistakes by Executors and Beneficiaries

• Distributing too early. Releasing estate funds before the six-month limitation period has expired, or before a notified claim is resolved, can leave the executor personally exposed.
• Treating the claim as a personal attack. The claim is against the estate, not the executor. Defensive or angry correspondence rarely helps.
• Taking sides. Beneficiaries sometimes expect the executor to "fight" for them. The executor's role is neutral.
• Refusing to engage with mediation. Mediations work. An executor who refuses to mediate risks a poor costs outcome at the end.
• Overpaying to settle. A claim of limited merit should not be settled at a level that encourages similar claims or unfairly diminishes the beneficiaries' interests.
• Failing to keep beneficiaries informed. Beneficiaries are entitled to regular, accurate updates about the claim and its implications for the estate.

Practical Strategies for Resolving Disputes

1. Get advice early. The first month shapes the rest. Engage an experienced estate litigator before responding substantively to the claim.
2. Preserve assets. Pause distributions, protect estate property and document the estate's position.
3. Investigate the applicant's eligibility. Confirm whether the applicant actually falls within a statutory category. Many claims are weaker on this point than initial correspondence suggests.
4. Assess the merits. Form an honest view of the likely range of outcomes — both in quantum and in costs.
5. Communicate with beneficiaries. Keep them informed in writing about the claim, the strategy and the risks.
6. Use offers and mediation. Well-pitched offers of compromise, made early, often resolve matters well below the cost of trial.
7. Document the outcome properly. Whether the matter settles at mediation, at the door of the court or by judgment, the executor's file should record the decisions and the reasons for them.

Related Reading

• Family Provision Claims in Victoria: Who Can Challenge a Will?
• The Duties of an Executor in Victoria
• Probate in Victoria
• Deeds of Family Arrangement in Victoria
• Testamentary Trusts Explained

Frequently Asked Questions