Contesting a Will - What is a Family Provision Claim?

Contesting a will is also known as making a family provision application from an estate. A family provision application is an application filed with the District or Supreme Court of Queensland by an eligible person seeking further and better provision from the estate of a deceased person.

There are circumstances where sometimes individuals are left out of a will, or perhaps did not receive an adequate portion of the deceased’s estate at the time of the deceased passing.

Who can make a family provision application?

An eligible person can be defined as:

  1. A current or former spouse of the deceased person;
  2. A child of the deceased person, including a stepchild or adopted child; or
  3. A dependent of the deceased person.

A dependent can extend to a parent of the deceased person, the parent of a surviving child of the deceased person under the age of eighteen years, or a person under the age of eighteen years who was being wholly or substantially maintained and supported by the deceased person at this time.

What does the Court consider when making further provision from the estate?

It is imperative to note that the Court does not hold any power to re-write a Will. In any event, the Court will firstly assess whether the existing gift to the applicant is reasonable. The Court will then make a decision as to whether further provision should be awarded, and this provision assessed against a variety of factors in accordance with the Succession Act 1981 (Qld).

These factors include:

  1. The Applicant’s financial circumstances, and whether they require further financial assistance in the future;
  2. Age and health of the Applicant including whether they suffer from any physical, mental or intellectual disability;
  3. Contributions made by the Applicant to the deceased’s estate or to the welfare of the deceased;
  4. If there are any other family provision applications made against the estate;
  5. The financial and personal circumstances of the other beneficiaries;
  6. Standard of living of the Applicant during the deceased’s lifetime;
  7. The relationship between the Applicant and the deceased; and
  8. The intention of the deceased.

Time limitations

There are time limitations that apply if you were to contest a Will in Queensland.

An individual may only contest a Will for further and better provision if they have provided written notice to the executor that they intend to contest the Will. This notice must be provided within six (6) months from the date of death. If the executor does not receive notice of a potential claim, and six (6) months has passed, then the executor may proceed to distributing the estate.

The second time limit is that you must file proceedings in the relevant Court within nine (9) months from the date of death. There are certain circumstances that permit you to make an application out of time, however, whether the application proceeds will be at the discretion of the Court. The Court views the time limitations strictly, and often will consider the reason for the delay, the length of the delay and whether the estate has proceeded to distribution when considering whether or not to allow an out of time application.

Who pays the fees in a family provision proceeding?

Costs will be awarded at the discretion of the Court, and this is usually decided at the end of the proceedings after a decision has been made. The successful party in legal proceedings will generally have either part, or all, of their legal fees paid for by the opposing party.

If you have been left out of a Will, or treated unfairly by the executors under a Will, it is essential that you have obtained legal advice to assess your recourse for a potential family provision claim. Please contact Renee Pappagallo, Partner in the Property and Commercial team, on (07) 3724 0172 for an initial consultation today.

31/08/2020