As in all Supreme Court hearings in the equity division the evidence of the witnesses in chief is obtained through affidavits. At the hearing objections are taken to each affidavit and then the witness is cross examined by opposing counsel on their affidavit.

A significant departure from the usual rules of evidence is that statements by the deceased made during their lifetime to one of the witnesses can be admitted into evidence through that witness.

As in all court hearings in the equity division, the evidence of the witnesses is obtained by affidavit.

At the hearing, objections (in the form of submission) can be made as to the content of affidavits or other evidence that is to be relied upon by a party (ie striking out some or part of an affidavit as it breaches the hearsay or opinion evidence rule).

Witnesses are cross examined by opposing counsel on the content of their affidavit. The practice in Victoria is that hearings will (generally) be by viva voce evidence.

A significant departure from the usual rules of evidence is that statements by the deceased made during their lifetime to one of the witnesses can be admitted into evidence through that witness.

In Queensland, pursuant to r 390 of the Rules evidence in a proceedings commenced by application (as family provision applications are) may only be given by affidavit (unless the court otherwise directs). At the hearing objections are taken to each affidavit and then the witness is cross examined by opposing counsel on their affidavit.

A significant departure from the usual rules of evidence is that statements by the deceased made during their lifetime to one of the witnesses can be admitted into evidence through that witness.

As in all court hearings in the equity division, the evidence of the witnesses is obtained by affidavit.

At the hearing, objections (in the form of submission) can be made as to the content of affidavits or other evidence that is to be relied upon by a party (ie striking out some or part of an affidavit as it breaches the hearsay or opinion evidence rule).

Witnesses are cross examined by opposing counsel on the content of their affidavit.

A significant departure from the usual rules of evidence is that statements by the deceased made during their lifetime to one of the witnesses can be admitted into evidence through that witness.

Proceedings in family provision claims may be by way of affidavit or pleadings. The usual course is to proceed by way of affidavit and those affidavits form the evidence in chief of those deponents. It is usual for the parties to notify each other of the witnesses they require to cross examine and often orders are made by the Judge or Master to this effect prior to the trial.

As in all Supreme Court hearings in the equity division, the evidence of the witnesses in chief is obtained through affidavits. At the hearing objections are taken to each affidavit and then the witness is cross examined by opposing counsel on their affidavit.

A significant departure from the usual rules of evidence is that statements by the deceased made during their lifetime to one of the witnesses can be admitted into evidence through that witness.

The court may receive in evidence a statement signed by the testator and purporting to bear the date on which it was signed and to set out reasons for making or not making provision or further provision by the will of the testator for a person as evidence of those reasons.

Where a statement of a kind referred to above is received in evidence, the court shall determine what weight, if any, ought to be attached to the statement, having regard all the circumstances from which any inference may reasonably be drawn concerning the accuracy of the matters referred to in the statement.

As in all Supreme Court hearings in the equity division, the evidence of the witnesses in chief is obtained through affidavits. At the hearing objections are taken to each affidavit and then the witness is cross examined by opposing counsel on their affidavit.

A significant departure from the usual rules of evidence is that statements by the deceased made during their lifetime to one of the witnesses can be admitted into evidence through that witness.

See Evidence of witnesses.

See Statements made prior to death.

After completion of the evidence from each party the court is required by to weigh and balance all the relevant considerations and, utilising its discretion, make a decision whether or not to make provision or increased provision for an applicant; and if so by how much, in what form and from which part of the deceased's property the provision will be taken from. The court can make a variety of orders and tailor those orders to suit the needs of the applicant.

The court can also make orders in relation to costs.

See Consideration of relevant factors by court.

Routinely, the costs of the defendant who is the executor are ordered to be paid out of the estate. Where the eligible applicant is a close relative and the applicant’s claim is successful or has some merit even if not successful then the court will probably order that the applicant’s costs come out of the estate on a party/party basis. For more remote applicants there is a good chance that an unsuccessful applicant may not obtain an order that their costs will come out of the estate and the worst case scenario is that the plaintiff has to pay the estates costs.

The court has the power to ‘cap’ costs and this power is more likely to be exercised in small estates where the costs have been relatively excessive compared to the size of the estate.

Routinely, the costs of the defendant are ordered to be paid out of the estate. Where the applicant is successful or is unsuccessful but has a meritorious claim, the court will probably order that the applicant's costs come out of the estate on a party/party basis.

An unsuccessful applicant may not obtain an order that their costs will come out of the estate. If one party has acted unreasonably, either in the prosecution or defence of a claim, the worst case scenario is that the other party f has to pay the costs of the other side.

Routinely, the costs of the respondent who is the executor are ordered to be paid out of the estate. Where the applicant's claim is successful then the court will probably order that the applicant's costs come out of the estate on a party/party basis. Unsuccessful applicants may not obtain an order that their costs be paid out of the estate and the worst case scenario is that the applicants has to pay the estates costs: see Dawson v Joyner (No 2) .

Routinely the costs of the respondent who is the executor are ordered to be paid out of the estate. Where the applicant's claim is successful then the court will probably order that the applicant's costs come out of the estate on a party/party basis. Unsuccessful applicants may not obtain an order that their costs be paid out of the estate and the worst case scenario is that the applicant has to pay the estate's costs.

An unsuccessful applicant may not obtain an order that their costs will come out of the estate. If one party has acted unreasonably, either in the prosecution or defence of a claim, the worst case scenario is that the other party has to pay the costs of the other side.

The court has the power to 'cap' costs and this power is more likely to be exercised in small estates where the costs have been relatively excessive compared to the size of the estate. The decision of Heenan J in Sergei v Sergei.

Where parties have interests which are capable of being represented jointly, that cost may not be award where they have chosen to have separate representation.

The parties should be aware that the court is concerned that costs in family provision applications are very high. The court will take such action as possible to reduce the costs. These actions include the capping of costs; awarding costs on a party/party rather than a solicitor/client or indemnity basis; making parties pay their costs; dismissing the applications and the losing party to pay the costs.

Usually, the costs of the executor are ordered to be paid out of the estate on an indemnity basis. Further, the costs of all the parties are often ordered to be paid from the estate but the award of costs is in the discretion of the trial judge. Supreme Court Practice Direction 8.1 makes it clear that where parties have interests which are capable of being represented jointly, that costs may not be awarded where they have chosen to have separate representation. Recent cases have indicated a shift in attitude by the courts, with warnings that parties should not expect costs to automatically be paid by the estate and that costs may be reduced or not awarded, depending on the facts of each case.

Routinely, the costs of the defendant who is the executor are ordered to be paid out of the estate. Where the eligible applicant is a close relative and the applicant's claim is successful or has some merit even if not successful then the court will probably order that the applicant's costs come out of the estate on a party/party basis. For more remote applicants there is a good chance that an unsuccessful applicant may not obtain an order that their costs will come out of the estate and the worst case scenario is that the plaintiff has to pay the estates costs.

The court has the power to 'cap' costs and this power is more likely to be exercised in small estates where the costs have been relatively excessive compared to the size of the estate.

Routinely, the costs of the defendant who is the executor are ordered to be paid out of the estate. Where the eligible applicant is a close relative and the applicant's claim is successful or has some merit even if not successful then the court will probably order that the applicant's costs come out of the estate on a party/party basis. For more remote applicants there is a good chance that an unsuccessful applicant may not obtain an order that their costs will come out of the estate and the worst case scenario is that the plaintiff has to pay the estates costs.

See Costs.