Business during COVID 19 - see here for more details

Contesting a will (family provision Application) in QLD - don't delay

The last thing a spouse, child or dependant might consider when mourning the loss of a loved one is whether adequate provision has been made for them in their loved one’s will or in the case of no will, whether adequate provision will be made for them in distribution of their loved one’s estate.

The Succession Act 1981 (Qld) (‘the Act’) grants the Court discretion to award a spouse, child or dependant provision out of a deceased’s estate in the case of no will or in the case of a will, even if the deceased has not provided for it.   

If you are a spouse, child or dependant of a deceased and have not been left adequate provision in the deceased’s estate, do not delay in seeking legal advice, as there are strict timeframes to bring a family provision application against the estate.

Limitation Period

A personal representative (also known as an executor) of an estate may distribute the deceased’s estate 6 months after the deceased’s death providing that they have not been notified of any application or intended application for a family provision claim in respect of the estate.

To protect your interest in the estate you should give notice of your intention to file an application for provision or further provision within 6 months from the date of the deceased’s death.

Notice needs to be in writing and signed by the person bringing the application, or their solicitor.

If you do not give notice of your intention to bring a family provision application until after 6 months from the date of the deceased’s death, you may still give notice providing it is given within 9 months after the date of death of the deceased (‘the Limitation Period’).

However, the personal representative may have already started distributing the estate, which could mean that there may not be any assets and money left in the estate to claim against.

A family provision application must be commenced within the Limitation Period. The Court may extend the time to commence the proceedings, however it will only do so if it is satisfied that sufficient cause can be demonstrated.

If the estate has not been distributed as at the date the notice is received (when it is given outside the 6 month period), the personal representative should not distribute the estate until after the Limitation Date has expired.

Eligibility

In Queensland, to apply for an order for a provision or further provision in an estate, you must be an eligible person as defined in Sections 40 and 41(1) of the Act.

The following are “eligible persons”:-

  1. the wife or husband of the deceased at the time of death;
  2. the de-facto partner of the deceased at time of death (providing they were in a continual relationship for 2 years prior to the date of death);
  3. the former legal spouse (must not be remarried and must have been receiving or entitled to maintenance from the deceased or be a parent of a child under 18 years of age of deceased and dependent at the date of death);
  4. a child of the deceased (including an adopted child of the deceased);
  5. step-child of the deceased (extends the definition to where step-child’s parent predeceases);
  6. a parent (if dependent at the date of deceased’s death);
  7. a dependent of the deceased as at the date of death (must have been maintained by the deceased at the time of death and either a parent of deceased, parent of a child of deceased under the age of 18 years or person under 18);

A former de-facto spouse has not been expressly provided for under Section 40 of the Act, but they may be eligible if they are a parent of a minor child of deceased, and they are a dependent at the date of death.

A sibling of deceased has also not been expressly provided for under the Act, but they may be eligible if they are a dependent and under the age of 18.

What the Court will Consider

When deciding whether adequate provision has been made from the deceased’s estate for proper maintenance and support of a spouse, child or dependant, the Court will consider: -

  1. the spouse, child or dependent’s financial position;
  2. the size and nature of the deceased’s estate;
  3. the totality of the relationship between the spouse, child and dependent and the deceased; and
  4. the relationship between the deceased and other persons who have a genuine claim to the estate.

The Court will consider the spouse, child or dependant’s financial position and the size of deceased estate to determine their needs comparative to the overall value of the estate.

The Court will also consider the spouse, child or dependant’s relationship with the deceased, and the relationship the deceased had with others who may have a legitimate claim to the estate, to determine whether the conduct of those making the claim disqualifies them to a provision, and whether it is reasonable that the share of others entitled to distribution from the estate is reduced to make provision for such spouse, child or dependant.

The court may also look at the financial position of others entitled to a share in the estate compared to the spouse, child or dependant making the claim.

If you are a spouse, child or dependant of a deceased and have not been left adequate provision in the deceased’s estate, do not delay in seeking legal advice about making a family provision application.

Garland Waddington have particular experience and expertise in assisting clients in this area.

If you or someone you know wants more information or needs help or advice, please contact us on (07) 5443 4866 or email mklein@gwlaw.com.au

If you need help, or have a question get in touch with us today.