One initial question people ask when considering a family provision claim is how long it will take. It is a reasonable question — these matters often occur during a period of grief, family tension and sometimes financial pressure. The prospect of a prolonged legal process can feel overwhelming.
The honest answer is that timelines often vary, and depend on factors that are not always within anyone’s control. However, understanding the general shape of the process helps families make informed decisions about whether and how to proceed.
The time limit for making a claim
In Western Australia, a family provision claim must generally be filed within six months of the date of the grant of probate or letters of administration. This is a hard deadline – missing it without a compelling reason to seek an extension can extinguish a claim.
If you believe you may have a claim, it is important to seek legal advice promptly – well before the six-month period expires. Early advice allows time to gather evidence, assess the merits of any claim, and file within time.
Extensions can be granted by the court in limited circumstances, but they are not guaranteed, so you shouldn’t rely on that.
The stages of a family provision claim
1. Pre-litigation
Before a claim is formally filed, there is typically a period of investigation and assessment. This involves reviewing the Will, the estate’s assets and liabilities, and the claimant’s financial position and relationship with the deceased. Pre-litigation negotiation often occurs when parties are reasonable or represented by capable lawyers. Many matters are resolved at this stage through negotiation, without the need to commence litigation.
2. Filing and service
If a settlement is not reached, a summons is filed in the Supreme Court of Western Australia and served on the executor and other relevant parties (usually beneficiaries). This formally commences the litigation.
3. Mediation
The Supreme Court generally requires parties to attempt mediation shortly after commencement. Mediation is a structured negotiation facilitated by an independent mediator. A significant proportion of family provision claims settle at or before this stage — often because both sides, once properly advised and with full financial disclosure, reach a position they can accept.
4. Hearing
Where mediation does not resolve the matter, the case proceeds to a hearing before a judge. Both sides prepare further documents and evidence, present their evidence and submissions, and the judge determines whether adequate provision was made and, if not, what further provision should be ordered.
5. Decision
Decisions are sometimes not made on the hearing date. Delivery of a decision may be deferred to a later date. A judge can sometimes take weeks or months to reach and publish a decision. This often depends on the complexity of the case, the number of parties involved, and the Court’s own caseload.
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Realistic timeframes
As a general guide:
- Matters that settle through negotiation before filing can resolve within a few months of the grant of probate
- Matters that settle at mediation typically conclude within twelve to eighteen months of the grant of probate
- Matters that proceed to a full hearing can take two years or more, depending on court availability and the complexity of the issues
These are indicative timeframes. The pace of any particular matter depends on the cooperation of the parties, the complexity of the estate, and the workload of the court.
What affects the timeline
Several factors tend to lengthen the process:
- Disputes about the composition or value of the estate
- Contested capacity or undue influence issues running alongside the family provision claim
- Multiple claimants with competing interests
- Parties who are reluctant to engage in negotiation, mediation or the Court process
- Difficulty locating or valuing assets
Conversely, matters where both sides are properly advised, the evidence is clear, and the parties are willing to negotiate tend to resolve more quickly and for far less cost.
Early advice makes a difference
Whatever the likely timeline, seeking legal advice early gives a claim the best chance of resolving efficiently, and at the lowest possible cost to everyone involved. Delay rarely helps a claimant and can sometimes prejudice the outcome.
At Solomon Hollett Lawyers, our estate litigation lawyers guide clients through family provision claims with clarity and precision. We help them understand what to expect, and steer them toward resolution where achievable.
