Upon receipt of the summons commencing a family provision action, the executor must identify all persons who could be potential applicants for provision or further provision from the estate of the deceased. This includes all those who have been given gifts in the will already. If the executor does not know those persons because they are not related to the family, then they must enquire from the family members. They will also be assisted by the list of possible eligible applicants provided by the applicant.

The executor then prepares and sends a notice to each eligible applicant informing that a claim has been commenced and that if they also wish to make a claim for provision or for further provision then they must commence that action prior to the time limit.

The executor prepares an executor’s affidavit which is a formal document setting out such matters in Supreme Court of NSW Practice Note SC Eq 7.

It is also important for executors to be truthful with the court, especially those executors who are the sole or main beneficiary under the deceased’s will and stand to gain if the applicant’s claim fails.

After being served with the application, the defendant will need to file a notice of appearance.

The applicant then issues a summons for directions and the parties negotiate a timetable for the future conduct of the proceedings. This timetable is submitted to the court at the directions hearing.

At the first return date of the directions hearing the legal personal representative must advise the court if he or she has notified the beneficiaries of the claim. The legal personal representative may be ordered to serve a notice upon the beneficiaries of the estate outlining the claim brought and giving the beneficiary the right to be joined to the proceeding (as a defendant). The letter encloses copies of the originating motion, directions order and affidavit.

Within 14 days of service of the material, the executor must either sign and return the draft directions order to the applicant’s solicitors, or advise them of any matter with which they disagree and put forward an alternative proposal.

The executor then prepares and sends a letter to all eligible applicants, as well as all beneficiaries of the will, in accordance with Practice Direction No 8 of 2001. The letter encloses copies of the originating application, affidavit and the directions order.

The executor then prepares an executor's affidavit and any other affidavits upon which the executor wishes to rely on in defence of the claim.

It is also important for executors to be truthful with the court, especially those executors who are the sole or main beneficiary under the deceased's will and stand to gain if the applicant's claim fails.

After being served with the application, the defendant will need to file a notice of appearance.

The defendant then waits for a notice from the court in regard to the date for the first case management conference which is equivalent to a call-over or status conference (directions hearing).

The defendant does not file a responsive affidavit until after the mediation.

The defendant attends the case management conference.

The defendant follows the directions of the Registrar of the case management conference by:

• provision of unavailable dates for a mediation in the next three months;

• directions setting out the duties of the parties in the calling of and participation in the mediation.

• request the provision of an affidavit from the executor stating the up to date financial affairs of the estate be filed and served two weeks before the mediation.

• Personal attendance by all parties at the mediation.

Each defendant must file an address for service within 14 days of service. A defence, or more commonly, an affidavit in reply follows. The filing of that responding documentation triggers the court to list the matter for a status conference. If no responding document is filed, the plaintiff will need to bring an interlocutory application to have the matter brought before the court for directions. The executor or administrator is not required to file a defence or responding affidavit but must within 21 days of filing the notice of address for service, file an affidavit stating the assets and liabilities of the estate; and exhibiting a copy of the probate or letters of administration and, if relevant, pointing out any error in the plaintiff's affidavit as to potential claimants and beneficiaries.

At the first return date of the application the executor may be ordered to file an affidavit with:

• the names and addresses of eligible applicants;

• the names and addresses of those who would be affected by orders made pursuant to the application; and

• particulars of the assets and liabilities of the estate.

When the court makes an order for provision out of the estate of a deceased person, an order under ss 15 or 17, requires that a certified copy of the order be endorsed on, or annexed to, the probate of the will or letters of administration with the will annexed or letters of administration of the estate of the deceased person, as the case may be, and, for that purpose, may require the production of the probate or letters of administration.

Upon receipt of the originating claim and statement of claim commencing a family provision action, the executor should identify all persons who could be potential applicants for provision or further provision from the estate of the deceased. This includes all those who have been given gifts in the will already. If the executor does not know those persons because they are not related to the family, then they must enquire from the family members.

The executor/administrator who is the defendant to the claim for provision needs to file a notice of intention to respond. This will trigger the court to list the matter for directions. At the directions hearing, directions for the request/supply of particulars of the claim, filing of a defence, request/supply of particulars of the defence and filing of affidavit evidence can be made. Application for the matter to be listed for mediation can be made by a party or directed by the court. Directions could be sought about the service of a copy of the appli-cation on any other potential or relevant party.

See Documents required.