What is a Family Provision Claim?
The Succession Act 1981 (Qld) allows courts to award certain classes of people, usually family members or dependents, a portion of a deceased’s estate, even if the will says otherwise.
The court has the power to alter the parties interests if a person eligible to apply has been provided with no provision or inadequate provision for them in a deceased persons will.
If the deceased’s close family or dependents will suffer hardship as a result of the deceased’s decision to give money or property to others, an eligible person may bring a court action of provision from the estate of the deceased.
Who can bring a Family Provision Claim?
Pursuant to the Succession Act 1981 (Qld) the following persons are eligible persons:
- Spouse—this includes a husband or wife who has been divorced from the deceased and who has not remarried before the death of the deceased, if they were receiving or were entitled to receive maintenance from the deceased at the time of death. ‘Spouse’ includes married and de facto couples. The definition of ‘de facto partner’ includes a same-sex partner. To fall within the definition, couples must have been living together on a genuine domestic basis for the two years up to the date of death (s 32DA Acts Interpretation Act 1954 (Qld), s 5AA Succession Act)
- Child—this includes any child of the deceased, including a stepchild, adopted child or a child born outside of marriage (s 40 Succession Act)
- Dependant—this includes any person who was being wholly or substantially maintained or supported (other than for a wage or some other payment) by the deceased at the time of the deceased’s death and who is:
- a parent of the deceased
- the other parent of a surviving child under the age of 18 years of the deceased
- a person under the age of 18 years (s 40 Succession Act).
Although, merely being an “eligible person” to apply does not automatically entitle an applicant to further provision from the estate of the deceased.
What does the Court Consider when it assesses a Family Provision Claim?
Once eligibility is established, the test applied in family provision applications is, in summary, as follows:
- Whether there is inadequate provision for the applicant’s proper maintenance, education and advancement in life under the Will of the deceased or the intestacy rules (this is a question of fact although it necessarily involves some value judgment); and
- If so, what if any, provision ought to be made out of the estate in favour of the applicant (this is a discretionary exercise).
- Applicant’s financial position;
- Size and nature of the deceased’s estate;
- Totality of the relationship between the applicant and the deceased (this factor involves the moral assessment and special circumstances); and
- Relationship between the deceased and other persons who have legitimate claims on her/his reward;
- Existence of any disentitling conduct, such as estrangement from the deceased.
The applicant has the opportunity to provide an affidavit to the estate solicitors outlining why they believe they are entitled to further provision from the estate.When and how can you make a
Family Provision Claim?
A claimant for family provision must act promptly as strict time limits apply.
In Queensland, a claimant must notify the executor or administrator of their intention to bring a family provision claim within six months from the date of death and the claim must be filed in Court within nine months from the date of death of the deceased.
The Court has discretion to direct an application be heard out of time. The onus is on the applicant to establish sufficient grounds for extending the time limit. The most significant considerations for the Court in exercising the discretion include:
- whether there is an adequate explanation for the delay;
- whether the beneficiaries are prejudiced; and
- whether the estate remains intact.
The normal ground for granting an extension of time within which to apply is that applicants did not know of, or appreciate, the extent of their rights to apply for maintenance. Another important consideration is whether the estate has already been distributed to the beneficiaries.Any application at a time can be extremely costly, and are not guaranteed.
The proceedings for a family provisions application are commenced by filing an Originating Application and supported by an affidavit. The affidavit must depose to facts sufficient to support a prima facie entitlement.
Once the application is filed, the estate and the applicant should agree to directions as to the manner in which the proceeding should move forward.
There is an opportunity for the estate, and any other potential respondents, to respond to the applicant’s allegations as to why they are entitled to further provision.
Generally, a mediation is conducted within 6 months of the filing of the application and the court.
A substantial number of family provision applications in Queensland settle at mediation, and generally, the legal costs of running the application to a contested trial are paramount factor in this.
Who Pays the Fees?
In Queensland, if you have a trial for a family provision application, the awarding of costs is at the discretion of the Court. This means it is up to the Court to decide who will bear the payment of the legal costs of the parties.If you are successful in your application to the Court, you may be entitled for your legal costs to be paid out of the estate, or in extraordinary circumstances, by another person to the proceedings.
Although, it should be noted that a favourable cost order may not mean that all your costs incurred by your solicitor are repaid.
The Importance of a Valid Will!
Estate planning advice is essential as a failure to seek professional legal advice to prepare a Will, attempting to draft your own Will, or neglecting to make sufficient provision for your spouse, children and dependants may result in a Family Provision Claim against your estate.
At Platinum Lawyers we will give you advice to mitigate the risk of any family provision applications.
Platinum Law Plan
If you are someone who has been left out of a Will or believe you have not been adequately provided for in a Will, please contact our office today.
We can also assist executors who have been notified of a Family provision claim.
Dedicated estate litigation lawyers have experience in representing both Applicants and Executors in Family Provision Claims.
Feel free to call our office on (07) 5519 9811 or book online for a free 10 minute no obligation consultation with one our estate litigation solicitors.