Family Provision Applications – Will Challenges | Anton A Richardson

Family Provision Applications – Will Challenges

Introduction
Part 4 of The Succession Act 1981Qld (“The Act”) details the situations in which an application can be made for further and better provision from the estate of a deceased. Often claims are brought by beneficiaries or others who have not been left what they consider to be adequate provision from the deceased in light of their circumstances. This can include situations where applicants have received no benefit or where applicants have received a benefit. A common misconception with the creation of wills is if a willmaker leaves a beneficiary something they will not be able to challenge the will. The following article is a brief overview of the situation as it currently exists within Queensland. Each State and Territory has differing legislation and therefore different procedures and time frames in relation to applications for further and better provision from an estate of a deceased person.

Eligible Applicant’s
The first step in any application is to ensure that the party wishing to make a claim for further and better provision is entitled to do so under the Act. The Act provides for three classes of applicant:

  1. Child – which is defined to mean any child, stepchild, or adopted child of that person;
  2. Dependant – which is defined to mean any person who was wholly or partially maintained and supported and at the time of deceased’s death being:
    1. a parent of the deceased;
    2. a parent of a surviving child under 18; or
    3. a person under the age of 18 years; and
  3. Spouse – which is defined to include a husband, wife, and defacto spouse.

If a party wishing to challenge the will does not fit into the above classifications they have no standing and will be unable to apply for further and better provision under the Act.

Time Limitation To Bring Application
There is a very limited time frame in which applications can be brought seeking further and better provision. An eligible applicant must give notification of their claim within six (6) months of the date of death and must file proceedings within nine (9) months of the date of death. In the event an eligible applicant fails to comply with the time limits they can apply for an extension however if the estate has been distributed there may be no estate left to seek further and better provision from. The time frame in which to bring an application is very important and if you believe you have a right to bring an application for further and better provision you should seek legal advice as a matter of urgency to ensure compliance with the time lines under the Act.

Success Of Claims
The success of any claim will depend upon the independent circumstances of each case and it is very difficult to ascertain the likely success or otherwise without knowing the full circumstances of each case. The success of any claim will depend upon:

  1. The size of the deceased’s estate;
  2. The financial position of the applicant;
  3. The level of need of the applicant; and
  4. The financial position of the other beneficiaries in the will.

In addition to reviewing the above, the court will look to see whether there was any disentitling conduct and reasons why the deceased may not have left adequate provision for an eligible applicant. Often the deceased may have left statements in their will or written letters or even statutory declarations declaring the reasons why they have decided to leave little or no benefit for an eligible applicant. Any application for further and better provision will examine these reasons and will also look at any justifications the beneficiary may have in relation to those reasons.

Process & Costs
The process of challenging a will and seeking further and better provision under the Act involves court litigation. Any court action can be time consuming and if agreement to a resolution cannot be reached than it can take many months and even years before a trial and judgement are handed down through the courts.

Applications for further and better provision are usually brought in the Supreme Court of Queensland. The costs of the applicant and the executor or administrator of the estate in such actions are generally ordered to be paid out of the assets of the estate of the deceased. In limited circumstances such as where the action is frivolous or doomed to fail the court will award costs against the party seeking further and better provision.

Executors / Administrators Obligations
The executor or administrator of an estate has an obligation to carry out the wishes of the deceased as contained in their last will and testament or alternatively under the laws of intestacy. This will in circumstances where a claim is brought against the estate require an executor to defend the action in accordance with the willmaker’s wishes. However the executor or administrator must also act in the best interests of the beneficiaries within the will or under the laws of intestacy. Acting in such interest will often where there is a prima facie case for further and better provision result in a mediated or negotiated settlement between the parties. Such a settlement is often assisted when factoring in the likely costs for the estate in paying for both sides of an application.

Complicating Factors
Often one of the most complicating factors is examining which jurisdiction a claim should be brought within given that a deceased may have assets in various states and territories. In such a circumstance the appropriate place to make application is the state in which the deceased is domiciled and often the estate in which a grant of probate or administration is being applied for by the executor or administrator of the deceased.

Conclusion
The success or otherwise of any application for further and better provision will always depend upon the circumstances of each individual case. In deciding whether to bring an application eligible applicants must ensure that they fall within the class of eligible beneficiaries and then bring their application within the strict time limits imposed. Executors and administrators have an obligation to act in accordance with the terms of the will or laws of intestacy, and also in accordance with the best interests of the beneficiaries. Often this will result in a negotiated or mediated settlement. In situations where the eligible applicant has a prima facie case the costs of both the applicant and executor or administrator will be paid out of the estate often diminishing the estate by a not insignificant amount.

For further information or advice contact our team at Ramsden Lawyers.

“For more information and advice about this topic, please call our office to speak with one of our experts in this area”.

By Shanan John Ramsden Lawyer and Managing Partner of Ramsden Lawyers.
23 Oct 2012

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