Mediation in Estate Litigation in Victoria

Types of Estate Proceeding

Estate proceedings in the Supreme Court include a range of distinct categories. Testator’s Family Maintenance (TFM) applications under Part IV of the Administration and Probate Act 1958 (Vic) are family provision claims by eligible persons. Probate validity proceedings concern the validity of a Will, including capacity, knowledge and approval, undue influence and due execution. Caveat and revocation applications concern whether a grant should issue, or should be revoked. Construction proceedings concern the meaning of a Will. Executor and administration proceedings concern the conduct of the personal representative and the administration of the estate. Each category has its own procedural framework and evidence. Referral to mediation and the shape of the mediation depend on the category and the case.

The Court’s Referral Practice

Under Practice Note SC CL 7 the Court will generally refer all TFM applications to mediation. That may include referral to judicial mediation, or to a Specified Court Officer under Practice Note PN SC GEN 6, or to an external mediator on terms fixed by the Court. Referral practice in other estate proceedings depends on the Court’s general case-management powers on the facts of the case; it is not automatic.

Private and Court-Referred Mediation

Private mediation is arranged by agreement between the parties, before or after proceedings are commenced. A mediation agreement governs the mediation, including confidentiality, attendance and fees. Court-referred mediation is arranged under the Court’s order and proceeds on the terms of that order and the applicable Practice Notes. The mediator’s role in both cases is to assist the parties to reach their own settlement. The mediator does not decide the case.

Confidentiality and Without-Prejudice

Confidentiality of the mediation depends on the mediation agreement, any Court order making the referral and the applicable legislation and rules. The without-prejudice principle applies to genuine settlement communications. Section 131 of the Evidence Act 2008 (Vic) governs the admissibility of settlement communications, subject to the statutory exceptions in that section. A party should understand the scope of these protections before making disclosures at mediation.

Preparing for Mediation

Preparation depends on the category of proceeding. In a TFM claim SC CL 7 identifies the material generally expected, including the plaintiff’s originating material and financial information, the executor’s affidavit of estate assets and liabilities, and the affected beneficiaries’ responsive material. In other estate proceedings the material depends on the issues in dispute.

Practical steps generally include: identifying the issues on which resolution is required; confirming the solvency and structure of the estate; assessing the evidence and any expert material; considering possible tax and duty consequences of proposed outcomes; and obtaining instructions on settlement parameters.

Settlement in TFM Proceedings

SC CL 7 sets out approval and material requirements for settlement of TFM applications, including where a party is a minor, an adult under disability or otherwise unable to give consent. The material generally required includes the proposed s 91 consent orders, the executed settlement agreement and any costs disclosure. Approval of the Court is required for consent orders that dispose of the proceeding.

The form of the settlement agreement depends on the transaction. A Deed of Family Arrangement, a Deed of Settlement and Release or another instrument may be used. The terms address matters such as release of claims, transfer of assets, payment of legal costs and confidentiality on terms agreed by the parties.

Settlement in Other Estate Proceedings

Settlement in probate validity, caveat and revocation, construction, executor and administration proceedings is documented in the form appropriate to the dispute. Consent orders that dispose of the proceeding are lodged with the Court for approval. Approval and evidentiary requirements depend on the nature of the proceeding and the interests affected.

Costs

Costs remain discretionary under the applicable legislation and Order 63 of the Supreme Court (General Civil Procedure) Rules 2025. Order 26 offers of compromise under the 2025 Rules and Calderbank offers are distinct mechanisms with different costs consequences; each requires attention to its own formal requirements. Whether costs are reserved, or otherwise dealt with, depends on the case.

Tax and Duty

The tax and duty consequences of a mediated outcome depend on the structure of the transaction and the facts. Depending on the case, considerations may include capital gains tax under the Income Tax Assessment Act 1997 (Cth) (including any relevant rollover provisions), duty under the Duties Act 2000 (Vic) and trust and superannuation consequences. Whether a particular rollover or exemption applies is a fact-specific question and cannot be assumed from the form of the document.

If the Mediation Does Not Settle

Where mediation does not settle the proceeding it continues on the litigation track. The Court may make further directions on evidence, disclosure, expert reports and trial. A further attempt at resolution may be considered as the proceeding progresses.

Frequently Asked Questions

How Parke Lawyers Can Help

Parke Lawyers acts for executors, beneficiaries, TFM claimants and other interested parties in mediated estate disputes, through our Estate Litigation & TFM Claims team. Speak with our estates team about mediation strategy and preparation before the mediation is convened.