What Happens at a NSW Supreme Court Family Provision Hearing?
A NSW Supreme Court family provision hearing is the final court determination of a claim brought under Chapter 3 of the Succession Act 2006 (NSW). The judge hears evidence, considers submissions, and decides whether to make a family provision order.
Most claims settle at mediation under Practice Note SC Eq 7, but those that proceed to hearing follow a structured court process. Empower Wills and Estate Lawyers represents claimants and defendants at all stages of family provision proceedings. This guide explains what to expect at a hearing.
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Most Claims Settle Before Reaching Hearing
Family provision matters in NSW are now case managed in the Probate and Family Provision List under Practice Note SC Eq 7, reissued 13 June 2024 and effective from 17 June 2024.
According to the Supreme Court of NSW 2024 Annual Review, of 4,010 Equity Division disposals in 2024, only 576 had at least one listing for a hearing. Family provision filings decreased by 6 per cent in 2024 while the pending family provision caseload grew by 24 per cent, reflecting longer case lifecycles.
The Supreme Court’s 2024 Annual Review records that the overall Equity Division pending caseload grew by 10 per cent in 2024, with family provision matters taking longer to resolve than other list types. Most claims resolve at court-annexed mediation, with the hearing reserved for the small share of matters that cannot be settled.
More: The Process of Contesting a Will in NSW
The Path to a Hearing Under Practice Note SC Eq 7
Reaching a final hearing involves a structured sequence of case management steps managed by the Registrar in Probate. Each step must be completed before the matter is listed for hearing:
- Filing the summons. A family provision claim begins by filing a summons in the Supreme Court of NSW, supported by affidavits from the plaintiff and a costs affidavit. The family provision forms page lists the approved documents.
- First directions hearing. The matter is first listed on the Registrar’s Thursday Family Provision list within roughly 28 days of filing. The Registrar sets a timetable for evidence.
- Filing affidavits. The plaintiff and defendant exchange affidavit evidence. The plaintiff’s affidavit must include a family tree, financial position, relationship history with the deceased, and details of any contribution to the estate.
- Court-annexed mediation. Under Practice Note SC Eq 7, court-annexed mediation is the default unless the parties consent otherwise. Mediation is listed on a half-day estimate. Parties must personally attend, absent exceptional circumstances.
- Setting down for a hearing. If mediation does not resolve the matter, the Registrar sets the matter down for hearing before a judge of the Probate and Family Provision List. The Probate List Case Management page outlines the procedural timeline.
- Pre-hearing compliance. Final affidavits, expert reports (such as valuations), and any concise statements of issues must be filed before the hearing date.
What Happens on the Day of the Hearing
Family provision hearings are heard in open court before a single judge. The structure is consistent across most matters, although timing varies with the complexity of the estate and the number of parties.
Opening Submissions
Each party’s barrister opens with a short outline of the issues, the relief sought, and the legal framework. The plaintiff opens first because the plaintiff carries the onus of proof.
Plaintiff’s Evidence and Cross-Examination
The plaintiff is called to give evidence. Their affidavits are usually tendered as their evidence-in-chief, supplemented by short oral evidence. The plaintiff is then cross-examined by the defendant’s counsel on issues of need, conduct, relationship, and financial position.
Defendant’s Evidence
The executor or beneficiary defendant typically gives evidence next, followed by cross-examination. Where the defendant is the executor, they often appear in a representative capacity rather than as a personally interested party.
Expert and Lay Witness Evidence
Valuers, financial advisers, or accountants may be called where the size or nature of the estate is contested. Family members may give lay evidence about the relationship with the deceased or the plaintiff’s circumstances.
Closing Submissions
Each party’s counsel makes closing submissions on the evidence and the law, addressing each of the factors in section 60(2) of the Succession Act 2006 (NSW). The judge usually reserves judgment to be delivered later in writing.
Reserved Judgment and Orders
After the hearing concludes, the judge prepares a written judgment setting out findings of fact, the application of the legal framework for contesting a will in NSW, and the orders made. The judgment is published on the NSW Caselaw website unless suppressed.
More: The Role of the Court in Contesting a Will in NSW
What the Judge Considers in Making Orders
The judge applies the two-stage test and the section 60(2) factors. The legal framework determines whether an order is made and the size of any provision:
- Eligibility under section 57. The plaintiff must fit within one of the eligible categories: spouse, de facto partner, child, former spouse, dependent grandchild, member of household, or person in a close personal relationship.
- Stage one: adequate provision. The judge asks whether the deceased made adequate provision for the plaintiff’s proper maintenance, education, and advancement in life. This is assessed at the date of the hearing.
- Stage two: discretion to order provision. If the answer to stage one is “no”, the judge considers what provision ought now to be made, having regard to community standards.
- Size and nature of the estate. The estate’s size is the most important practical limit on what can be ordered. A modest estate constrains the scope for provision regardless of need.
- Competing claims. The judge weighs the plaintiff’s need against the legitimate claims of other beneficiaries already provided for in the will.
- The plaintiff’s conduct. Disentitling conduct toward the deceased can reduce or extinguish a claim, though it rarely defeats one outright.
Outcomes and Orders the Court Can Make
The court has a wide discretion under section 59 of the Succession Act 2006 (NSW) to fashion orders that achieve adequate provision. The most common forms of order include:
| Order Type | What It Looks Like |
| Lump sum | A fixed dollar amount paid from the estate to the plaintiff is the most common outcome. |
| Specific asset | An order vesting a particular asset, such as the family home or a parcel of shares, in the plaintiff. |
| Periodic payments | Regular payments from the estate over a defined period are used where ongoing support is appropriate. |
| Property settlement | An adjustment of property interests, often combined with a lump sum, in larger or more complex estates. |
| Notional estate order | An order designating non-estate property as part of the estate to satisfy a provision, available in NSW under Part 3.3. |
| Dismissal | No order made because the threshold test for inadequate provision is not satisfied. |
The judge delivers judgment in writing, sets out the reasoning, and makes consequential orders for costs and the timing of payment.
Costs at a Family Provision Hearing
Costs in family provision hearings are governed by the Civil Procedure Act 2005 (NSW), the Uniform Civil Procedure Rules 2005, and the court’s discretion. The overriding purpose of a just, quick, and cheap resolution applies. Costs outcomes are highly fact-dependent:
- Costs follow the event. The general rule is that the unsuccessful party pays the successful party’s legal costs, but in family provision matters, the court takes a more flexible approach reflecting the family context.
- Successful plaintiff. A successful plaintiff usually receives their costs out of the estate on an ordinary basis. This reduces the net benefit from the order but rarely defeats it.
- Unsuccessful plaintiff. An unsuccessful plaintiff may be ordered to pay the defendant’s costs, particularly where the claim lacked merit or where reasonable settlement offers were rejected during the proceedings.
- Calderbank offers. Written settlement offers made under Calderbank v Calderbank principles can shift costs liability where a party rejects a reasonable offer and does worse at the hearing than the offer would have delivered.
- No win, no fee impact. Conditional cost agreements do not protect plaintiffs from adverse cost orders by the court. The Provisional Statistics 2024 confirm that contested family provision matters continue to face high costs exposure on both sides.
Speak to a Family Provision Hearing Lawyer
If your family provision claim is approaching mediation or a hearing, or you are an executor defending a claim, call Empower Wills and Estate Lawyers on 1300 414 844. Our specialist practice acts for claimants and executors at every stage of family provision proceedings in the Supreme Court of NSW. We offer flexible fee structures, sliding scales, payment plans, pensioner discounts, and no-win, no-fee agreements in eligible cases. Clients remain liable for disbursements and barrister’s fees regardless of outcome.
Frequently Asked Questions
How long does a family provision hearing in NSW take?
Most family provision hearings run for one to three days, depending on the number of parties, the volume of evidence, and the complexity of the estate. Larger or contested estates may take longer.
Will I have to give evidence at the hearing?
Yes, in nearly all cases. The plaintiff is cross-examined on their affidavit, and the executor or contesting beneficiaries usually give evidence too. Witness preparation with your lawyer is essential.
What is the difference between mediation and a hearing?
Mediation is a confidential settlement conference held under Practice Note SC Eq 7. A hearing is the final determination by a judge in open court. The vast majority of NSW family provision matters resolve at mediation.
How long after the hearing will the judgment be delivered?
The judge usually reserves judgment and delivers a written decision weeks or months later. Complex matters can take longer, particularly where multiple parties and large estates are involved.
Can I appeal a family provision decision?
Yes, appeals lie to the NSW Court of Appeal but only on questions of law or where the judge made a material error. Appeals must be filed within strict time limits and are not a rehearing on the facts.
Are family provision hearings public?
Generally yes. Supreme Court of NSW hearings are conducted in open court unless a suppression order has been made. Affidavits filed in the proceedings are also accessible on the court file in most cases.
