What kind of evidence do I need in defending the claim?

The Supreme Court has published a very helpful and detailed practice note which sets out the evidentiary obligations of an executor in defending a family provision claim.

Firstly, the executor is required to provide a copy of the deceased’s will and probate or letters of administration. These documents contain the deceased’s intentions as to the distribution of their estate, along with the assets and liabilities of the estate at the time probate was granted.

The next piece of evidence an executor is required to provide is a description and value of the deceased’s estate. A description of the estate means what assets are in the estate. This can include real estate, cars, shares and bank accounts. All of which must be documented. A dollar value of each individual asset as well as the total value of the estate must also be provided. This allows the claimant and the Court to understand the value of the estate, along with assisting the Court in distributing the estate if the claimant is successful.

In addition when calculating the value of assets in an estate it is important to consider whether the asset will appreciate or depreciate in value in the near future. To this effect statements by financial experts may be required to support whatever value is being provided and how that may change in the future.

The executor must also provide a description and nature of any prescribed transaction or relevant property transaction. This typically involves property that has been transferred or sold for less than full value, usually in order to reduce the assets of the estate, within 3 years of the deceased’s passing.

The defendant must also provide a list of expenses and any other liabilities of the estate that have been paid out of the estate. This usually includes the payment of any debts or amounts outstanding in the deceased’s name. In addition the administrator or executor’s costs must also be included in this this.

Lastly, the defendant must provide a list of every person who has been named as a beneficiary under the will. In addition, a list of every eligible person, that the administrator or executor can reasonably find, who can bring a claim for family provision must also be provided. Every person who is holding property of the estate as a trustee must also be provided.

It is important to promptly obtain legal advice in preparing the required evidence. This is something our Estate Disputes team are experts at.

If you have further questions, please contact us at frank@franklaw.com.au.

This is not legal advice.