If you are in a dispute over a will, family provision mediation is usually where the dispute is tested first. In NSW, a family provision claim must generally go to mediation before the court will decide it, so the real question is often not whether to mediate, but whether to settle.
This article explains what family provision mediation involves, what happens on the day, why settling is often the better path for families in Sydney and across NSW, and when it may not be.
A family provision claim is an application to the Supreme Court asking for provision, or more provision, from a deceased person’s estate. It is what most people mean when they talk about contesting a will.
The law encourages these disputes to settle. Unless there are special reasons, the court must refer a family provision claim to mediation before it considers the claim.
The Supreme Court’s practice note for these claims sets out how this works. The first court date, called the first directions hearing, is held within about five weeks of the claim being filed. At that hearing, a court registrar gives directions so that each side shares information about the claim, the estate and their estimated legal costs, and everyone can make a realistic assessment. The claim is then referred to mediation at the earliest practicable time, which may be at that first hearing or once the evidence is in.
Unless the parties agree or the court orders otherwise, the mediation is held through the court, with a court registrar as mediator. There is no charge for the mediator or the venue, and the parties are expected to attend in person.
A court-annexed mediation is usually listed for half a day. Every mediation is different, but most follow a similar pattern:
The mediator does not decide who is right. Their role is to help the parties find an outcome they can both accept.
Family provision claim costs can be significant. The court has a wide discretion over who pays legal costs, and the costs of a successful claim are generally paid from the estate. That means costs can reduce what is left for everyone, including you. The court also expects that an estate’s resources will not be spent out of proportion to its size.
Time is another factor. If a claim does not settle, the court sets a timetable to prepare for a final hearing, which means more evidence, more preparation and more waiting.
Settling also gives you a say in the outcome. At mediation, the parties shape the agreement themselves. At a final hearing, a judge decides, and no one can predict that decision with certainty. A hearing is held in open court, while mediation is a private process, which can make it easier to preserve family relationships.
It’s your family’s estate, and our focus is on the best result for you. A final hearing can be expensive, and those costs can reduce what’s left in the estate for everyone. That’s why, in the right case, mediation can be the better path.
If the parties reach agreement, the terms are put in writing and signed. The court can then make a family provision order in the agreed terms, known as a consent order. If a claim settles at a court-annexed mediation, the registrar can often make the orders straight away, unless they need a judge’s approval.
Because the agreement is intended to end the claim, make sure you understand the terms and get advice before you sign.
Settling is not always the right answer. An offer may be too low to meet your genuine needs, or the other side may not engage in a real way. Some disputes turn on a question that needs a judge to decide.
If mediation does not resolve the claim, the court will set a timetable for a final hearing. Negotiations can continue during that time. Deciding whether to accept an offer means weighing it against the possible result at a hearing, the costs of getting there and the risk involved. That is where independent legal advice matters most.
Good preparation helps you make clear decisions on the day. Before the mediation:
If you have not yet made a claim, keep the time limit to contest a will in NSW in mind. If you are an executor responding to a claim, our guide to your first 30 days as an executor may also help.
If you are making a family provision claim, or responding to one as an executor or beneficiary, Stephen Wawn & Associates can help you prepare for mediation and weigh up any offer. We are based in Edgecliff and act for clients across Sydney’s Eastern Suburbs and NSW. Contact us for a free consultation.
