Been unfairly left out of a will? Family Provision Applications in Queensland are legal avenues that allow certain individuals to seek adequate provision from a deceased person’s estate when they believe they have been unfairly omitted or insufficiently provided for in the will. These applications are governed by specific laws and have particular eligibility criteria, procedures, and timeframes.

What are the Governing Laws?

In Queensland, Family Provision Applications are primarily governed by the Succession Act 1981 (Qld). This legislation outlines the rights of eligible persons to apply for a share or a larger share of a deceased person’s estate if they believe the will does not make adequate provision for them.

Who can Make a Family Provision Claim?

Under the Succession Act 1981 (Qld), the following individuals are eligible to make a Family Provision Application:

• Spouse: This includes a husband or wife, a de facto partner, or a registered civil partner of the deceased.
• Children: Biological children, stepchildren, and adopted children of the deceased.
• Dependants: Individuals who were wholly or substantially maintained or supported by the deceased at the time of their death.

Demonstrating Dependency

For a person claiming to be a dependant, it is essential to provide evidence that they were financially reliant on the deceased. This may involve demonstrating that the deceased provided regular financial support, housing, or other necessities of life. The court will assess the nature and extent of the support to determine if the claimant qualifies as a dependant.

What are the Criteria for a Successful Application?

To succeed in a Family Provision Application, the applicant must establish that:

1. Eligibility: They fall within one of the eligible categories (spouse, child, or dependant).
2. Inadequate Provision: The provision (if any) made for them in the will is insufficient for their proper maintenance, education, and advancement in life.

The court considers various factors, including:

• The applicant’s financial position, age, health, and needs.
• The size and nature of the deceased’s estate.
• The totality of the relationship between the applicant and the deceased.
• The needs and claims of other beneficiaries.

Outcome of a Successful Application

If the court finds in favour of the applicant, it can order that adequate provision be made from the deceased’s estate. This may involve altering the distribution outlined in the will to provide a lump sum payment or ongoing support to the applicant. The specific outcome depends on the circumstances of the case and the discretion of the court.

Are there Time Limits for Filing an Application?

Timeframes are critical in Family Provision Applications:

• Notice of Intention: Applicants must notify the executor of their intention to make a claim within six months of the deceased’s death.
• Formal Application: The application must be filed in court within nine months of the deceased’s death.

Failing to adhere to these time limits may result in the court refusing to hear the application, although extensions can be granted in certain circumstances.

How long will it take?

The time it takes for a Family Provision Application to proceed to trial varies based on factors such as the complexity of the estate, the court’s schedule, and whether the parties are open to settlement. Generally, if the matter proceeds to trial, it can take several months to over a year to reach a resolution.

Do Applications Settle Before Trial?

Many Family Provision Applications are settled through negotiation or mediation before reaching trial. Alternative dispute resolution methods can save time, reduce costs, and provide a less adversarial means of resolving the matter.

What are the Costs Involved?

The costs associated with a Family Provision Application can vary widely. Expenses may include legal fees, court costs, and other related expenditures. In some cases, the court may order that the applicant’s costs be paid out of the estate, but this is not guaranteed. It is advisable to seek legal advice to understand the potential costs involved in your specific situation.

Recent Case Examples

Several cases illustrate the application of Family Provision laws in Queensland:

• Cope v The Public Trustee of Queensland [2013] QDC 176: This case involved a dispute between a widow and a stepchild over a modest estate. The court had to balance the competing claims to determine an equitable distribution.
• DW v RW [2013] QDC 163: An adult son applied for further provision from his father’s estate. The court considered his financial situation, health, and the nature of his relationship with the deceased in making its decision.
• Niebour-Pott & Anor v Pott [2020] QSC: In this matter, the deceased’s second wife, as executor, expended over a million dollars defending the estate against various claims, significantly reducing its value. The court examined the reasonableness of the legal costs incurred and their impact on the estate’s distribution.

These cases demonstrate the complexities involved in Family Provision Applications and the necessity of careful legal consideration.

Navigating a Family Provision Application in Queensland requires a thorough understanding of the legal framework, strict adherence to procedural timelines, and a clear demonstration of need and eligibility. Given the complexities and potential emotional strain, it is strongly recommended to seek experienced legal counsel to guide you through the process and advocate on your behalf.

If you feel you have been unfairly left out of a will, our team at Twomey Dispute Lawyers are here to assist. We can provide you with the support and legal guidance you need to navigate this difficult time. Call us for a confidential chat on 1300 286 578 or email us at info@tdllaw.com.au

Important note on this article

This article discusses the general state of affairs, which could change at any time because the law can change at any time. Also, your situation is unique, so an article like this one can’t give you all your options, and some of the options discussed here might not apply to you. For those reasons and others, you mustn’t treat what you’ve read here as legal advice for you. What you should do as soon as possible is get legal advice specific to you if you are affected by anything discussed above.

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