While a person makes a will in the hope that once they pass, their worldly estate will be distributed to beneficiaries in an orderly fashion, this is sadly not always the case.
Instead, survivors of the deceased are often unhappy about what they were left in the will, if anything, and believe they are entitled to a share or a greater share of the estate.
When this occurs a person can make a Family Provision Claim (FPA) under Queensland’s Succession Act 1981, contesting the will because it made inadequate provision for them given their relationship and history with the deceased.
We’ll provide more detail on how to make this type of claim in this post but as the process can become quite time-consuming and complex, it’s always advisable to seek advice from legal professionals with specialist knowledge in succession law before proceeding.
What is required to make a Family Provision Claim?
There are a number of key requirements before contesting a will with an FPA through an application to the Supreme Court of Queensland.
The essentials of making this claim are that you must demonstrate you are an ‘eligible person’; have been left out of a will or feel you were inadequately provided for in a will. Family provision claims must be brought within nine months of the death (and notice given within 6 months of the date of draft) A family provision claim can be made in Queensland if the deceased owned real estate in Queensland or was living in Queensland at the time of their death.
The claim contesting the will can be made before a grant of Probate or Letters of Administration – the legal authorisation for an executor or administrator to distribute the estate to beneficiaries – has been made.
Eligible persons: An FPA can only be made by an eligible person, being a spouse, child or dependant. Spouse can include a husband, wife, de facto partner and/or civil partner, including a dependent former husband, wife or civil partner of the deceased person. A child may include a stepchild or adopted child of the deceased.
For a person who claims dependency on the deceased when they were alive, they must establish that they were wholly or substantially maintained or supported by the deceased at the time of his or her death, and they were the deceased’s parent; the parent of a surviving child under the age of 18 years of that deceased person; or a person under the age of 18 years.
What factors are involved in deciding the application?
If a person establishes they are eligible to make an FPA, they must then show that the deceased’s will did not make adequate provision for their ‘needs’ and detail in the claim what an appropriate provision would be.
In assessing the application the court will consider the following factors:
- the current financial position of the applicant, including their current and future needs;
- the past relationship between the deceased and other persons who have claims;
- the nature of any support the person making the application provided to the deceased during their lifetime;
- whether the deceased made any promises or statements to the applicant;
- the value and location of the deceased’s property;
- the size and nature of the deceased’s estate and whether the person making the claim contributed to it;
- the standard and quality of living to which the applicant has become accustomed; and
- an overall assessment of the relationship between the applicant and the deceased.
The court then decides what would constitute an adequate provision for the person or persons making the FPA. The result may be a payment of a lump sum of cash to the applicant, a right to reside in a property (i.e. life tenancy), ongoing instalments of money paid from a trust, or property such as a house or motor vehicle.
If a claimant’s application for provision is successful and has merit, it is likely costs to be paid by the estate.
The process of making an FPA in Qld
An FPA begins by filing an originating application, draft consent orders and a supporting affidavit in the Supreme Court of Queensland. The application states the orders you are seeking to be made by the Court. The affidavit must confirm the applicant is entitled to make the application and provide evidence supporting the contention that they have not been adequately provided for.
The consent orders set out a schedule for the parties to file material and a dispute resolution plan. If mediation is unsuccessful, the parties will appear in court for the matter to be determined.
The FPA process requires the expertise of legal representatives with a solid background in succession law. Our Rockhampton family lawyers at South Geldard Lawyers can give you the right advice and guidance on all matters relating to wills and estates so get in touch if the issues raised in this article are relevant to your circumstances.
It is important to seek specific advice form Rockhampton lawyers, Brisbane, and Yeppoon lawyers regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.
