Filing a family provision claim can feel like stepping into the unknown. You have decided to ask the Court for a fairer share of an estate — and now you’re wondering: what actually happens next?
The good news is that the process is more orderly, and less combative, than most people expect. In Western Australia, a family provision claim follows a clear pathway and the large majority are resolved without the need for a Judge to decide the outcome at trial.
Here is what you can expect after filing a family provision claim in the Supreme Court of Western Australia.
Summary
- A family provision claim is commenced by filing a summons in the Supreme Court of WA.
- The matter will usually come before the Court for the first directions hearing, which is generally held within about 28 days.
- The parties exchange financial and other relevant information through sworn affidavits.
- Mediation is an important part of the process and many claims resolve at mediation.
- If mediation fails, the matter proceeds to a hearing before a Judge.
- Settled claims often conclude within 12–18 months while contested hearings can take longer.
Step one: the claim is filed and served
A family provision claim begins when your lawyer files a summons in the Supreme Court of Western Australia.
The summons is then served on the executor or administrator of the estate, who is the person responsible for representing the estate’s position.
Once the claim has been commenced, the estate’s assets need to be dealt with carefully. An executor should generally avoid distributing estate assets in a way that could prejudice a potential or existing family provision claim.
Step two: the first directions hearing
Within roughly 28 days of filing and the parties entering an appearance, the matter comes before the Court for a first directions hearing.
This is not the trial. It is primarily a case-management hearing where the Registrar sets the timetable for the journey ahead. The Court will make directions about what needs to happen next, including the exchange of evidence and information between the parties and, where appropriate, steps towards mediation.
The aim of this exercise is to get the relevant information on the table so everyone can properly assess the claim rather than arguing about the estate while important facts are still missing.
Step three: exchanging the evidence
Family provision claims turn heavily on the financial and personal circumstances of the people involved. The parties will generally need to provide evidence about matters such as:
- your financial position — income, assets, debts and expenses;
- your relationship with the deceased;
- your health and any other relevant information; and
- your needs, both now and into the future.
The applicant needs to explain why the provision made for them under the Will — or on intestacy — is inadequate and what further provision they say should be made.
The estate, in turn, discloses its value and any competing claims on it. This exchange gives both parties a grounded, honest view of where the claim stands.
The estate will also need to provide information about its value and any competing claims or beneficiaries.
This stage can often feel intrusive but the Court needs evidence, not just assertions. The clearer the picture, the easier it becomes for everyone to work out where the claim is heading.
Step four: mediation (where most claims resolve)
This is the part that often surprises people: a family provision claim does not necessarily end with a courtroom showdown. Most of these claims settle at mediation — often within the first couple of months.
Mediation is a structured, confidential negotiation guided by a Registrar or Judge of the Supreme Court, who acts as an independent mediator. It gives the parties an opportunity to step back from the strict evidence, reflect on what is available for distribution and how the parties would be amenable to divide the estate to achieve an outcome that each party can live with.
For many families, it is the point at which a dispute that initially seemed headed for a long legal battle can be brought to a resolution.
Importantly, the parties get to decide the destination faster and in a relatively cheaper manner instead of leaving the final decision entirely in the hands of a Judge. For a sense of the overall timeframe, see our guide on how long a family provision claim takes in WA.
Step five: if it doesn’t settle, a hearing
Not every dispute can be resolved at mediation.
If the parties cannot agree, the matter continues towards a final hearing. The Court will make further directions, additional evidence may be required, and the parties will prepare their cases for trial.
The Court makes further orders, more evidence is prepared, and eventually a Judge hears all the sides. The Judge then applies a two-stage test:
(a) if not, what further provision should be ordered to make it proper and adequate.
(b) whether adequate provision was made for you; and
A judgment is not necessarily delivered on the day. The judge may reserve their decision and deliver judgment at a later date, which could be weeks or months.
A word on cost and timing
Two of the most common questions we hear are: How much will this cost? And how long will it take?
The answer is, unhelpfully, “it depends”.
The route a claim takes will depend on the estate, the people involved and the issues in dispute. A straightforward claim that settles early will look very different from a matter involving substantial assets, competing beneficiaries and disputed evidence.
Costs are often paid from the estate, but not always. Every dollar spent fighting over an estate is potentially a dollar less for the beneficiaries. The Court can also make specific costs orders, including limiting the costs that may be recovered from an estate in appropriate circumstances.
As a rough guide, claims that settle at mediation may conclude within 12 to 18 months of the grant of probate. Matters that proceed all the way to a final hearing can take two years or more.
This is where good navigation matters. Getting the right advice early can help identify the real issues, avoid unnecessary disputes and put the parties in the best position to resolve the matter efficiently — without unnecessary costs being incurred along the way.
The takeaway
Filing a family provision claim sets a defined process in motion — file, disclose, mediate, and only rarely, litigate. Knowing the road ahead takes much of the fear out of it.
The destination is not always a courtroom. In many cases, the best outcome is finding a sensible resolution before the dispute travels that far.
If you’re considering a claim, or you’re an executor responding to one, our inheritance disputes team can guide you through each step with clarity and a steady hand.
Speak with our specialists to talk through your next move.
Frequently asked questions
Do I have to go to court for a family provision claim?
Usually not. Many family provision claims in Western Australia resolve through negotiation or mediation at the Court without reaching a final hearing. If the parties cannot agree, however, the matter may proceed to a hearing before the Supreme Court of Western Australia.
How long does the process take?
There is no fixed timeframe. Claims that settle at mediation can often be resolved within 12–18 months of the grant of probate, while matters that proceed to a contested hearing can take two years or more. The complexity of the estate and the issues in dispute can significantly affect the timeframe.
Who pays the legal costs?
Costs are not automatically paid from the estate. The Court has discretion when making costs orders, and the outcome will depend on the circumstances of the particular case. In some circumstances, the Court may also limit the costs that can be recovered from the estate.
Can the estate be distributed while my claim is on foot?
Generally, the executor should not distribute the estate when they have notice of a potential claim or a claim that has been filed in the Supreme Court. Distributing an estate without properly accounting for a potential claim can create complications and, in some circumstances, may prejudice the claimant’s position.
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