Legal Project Management Plan & Checklist
Purpose of this Guide: Use this plan when your client is the executor of an estate and a family provision application has been filed by someone claiming a larger share. The executor's job is to defend the estate - either by resisting the claim entirely (if it lacks merit) or by achieving the best possible outcome for the beneficiaries named in the will. Open this plan as soon as you receive the application or a notice of claim from an eligible person.
Jurisdiction: Supreme Court of Queensland (Trial Division). The claim is brought under the Succession Act 1981 (QLD). Forks address the strategic decision the executor must make at the outset: whether to actively defend and oppose the claim, or to adopt a neutral stance and leave the contest to the competing beneficiaries.
The Process at a Glance: On receiving the application, review the will, the estate inventory, and the claimant's relationship with the deceased. Advise the beneficiaries who stand to lose if the claim succeeds - they may wish to file their own affidavits in support of the executor's position. Obtain and file the estate inventory. File the executor's affidavit setting out the estate assets and the circumstances of the testamentary disposition. Consider whether the claim has merit and advise on the prospects of settlement. Attend mediation. If the matter cannot be resolved, prepare for trial with lay and financial affidavit evidence.
Use this fork when the executor needs to decide, at the outset of a family provision claim, whether to actively oppose the application in court or to adopt a neutral stance and let the beneficiaries who would be affected take the lead. This is a critical strategic decision that affects costs exposure and the executor's obligations to all parties.
Key Legislation and Case Law: Succession Act 1981 (QLD) Part 4 (ss 40-44D). The executor has a duty to act in the interests of the estate and the beneficiaries named in the will, not just to pay out claims to avoid costs. Costs are at the court's discretion - an executor who defends reasonably will generally have costs paid from the estate: Re Sherborne Estate (No. 2) [2005] NSWSC 587 (applied by analogy in QLD). CRITICAL: no notional estate in QLD - the estate cannot be increased by notional property. The 6-month restriction on distribution under s 44 protects claimants.
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Family Provision Application (Respondent) matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for TRUSTS_ESTATES cases, outlining the standard DISPUTE_LITIGATION process. Utilize these tracking templates to manage your legal cases efficiently.
Cease distribution of the estate upon receiving notice and verify the notice was served within the 6-month statutory deadline under s 41(8). If notice was NOT received within 6 months, advise executor of s 44 protection.
Evaluate the originating application against the Singer v Berghouse two-stage test, assess the competing needs of the principal beneficiaries, investigate any disentitling conduct, and determine the strength of the estate's defence.
Draft and file the executor's asset affidavit (Form 46) detailing estate assets, liabilities, and administration costs, plus beneficiary affidavits detailing their financial positions and competing needs.
Issue a Calderbank offer to protect costs position, attend the mandatory mediation under Amended Practice Direction 14 of 2023, and seek an early resolution to protect estate resources.
Brief counsel, compile trial bundle, present the defence at trial, and seek to protect the estate from disproportionate provision orders.
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