All Is Fair In Love And War: Family Provision Application

Navigating the death of a loved one can be a challenging and emotionally charged process. In recent years, as individuals are living longer and accumulating a ,more significant number of assets and overall wealth, it has become increasingly popular for individuals to contest a Will or their provision in a Will. In this article, Ramsden Lawyers Litigation and Dispute Resolution Senior Associate Lachlan Boyle and Law Clerk, Riley Hickey, shed light on the processes and procedures involved in bringing a Family Provision Application.  

Background – Family Provision Application

While preparing a Will is often thought to streamline the distribution of the assets of a deceased’s estate, this, unfortunately, is a rare occurrence in practice. In some cases, beneficiaries may come forward to seek a share or more significant share of the estate through a Family Provision Application (‘FPA’).

There are three main factors to consider before making a family provision claim, including:

(a)           whether you are considered an ‘eligible’ applicant.

(b)           whether you have brought the claim within the stipulated time limits; and

(c)            the factors the court will weigh up when determining.

Jurisdiction

Suppose the deceased owned real estate in Queensland or was living in Queensland at the time of their death. In that case, a beneficiary can seek to rely upon the Succession Act 1981 (Qld) (‘Act’) and rely upon its statutory provisions accordingly.

Eligibility

Family provision applications are exclusively reserved for ‘eligible’ applicants only. An FPA can only be brought about by a spouse, de facto, civil partner, child or dependent of the deceased. Individuals not captured by one of the aforementioned categories may not be able to pursue an FPA action and contest a Will on that basis.

Time Limits

Suppose a beneficiary is considering their options to contest a Will. In that case, they must act without delay as family provision applications typically enforce strict statutory time limits for commencing an action to allow for the speedy resolution and distribution of the deceased’s estate. In Queensland, the applicant must give notice of their intention to make an FPA within six months of the date of death, while the relevant limitation period to commence the action expires nine months after the death of the deceased. However, the Court has the ultimate discretion to extend that period concerning:

(a)           the circumstances of the application as a whole

(b)           whether evidence can be adduced concerning an explanation for the delay

(c)            whether the beneficiaries would suffer any prejudice

(d)           the conduct of the applicant; and

(e)           the strength of the applicant’s case.

Factors

In circumstances where an applicant is an eligible person who seeks to bring their claim within the relevant period, it is essential to note that they are not automatically guaranteed further provision from the deceased’s estate. Notably, the essence of the FPA lies within their ability to adduce compelling evidence demonstrating that they have been left out of a will or that they have been inadequately provided for. In other words, the applicant must demonstrate that adequate provision has not been made from the estate for their ‘proper maintenance and support’. This requires a detailed analysis of a more appropriate entitlement, which any number of the following factors may supportmay support any number of the following factors: 

(a)           the applicant’s current financial position

(b)           the applicant’s relationship with the deceased

(c)            the nature of the support the applicant received previously

(d)           the value and location of the deceased’s property

(e)           any promises or statements made by the deceased which may be relevant

(f)             any disentitling conduct; and

(g)           the standard and quality of living of the applicant.

After considering the aforementioned factors, the court has the ultimate discretion to determine what constitutes adequate provision (if any) for the applicant submitting the FPA. This may be by way of a lump sum payment, the entitlement to receive instalment payments from a trust, the right to reside in the deceased’s property, and / or to obtain other estate assets such as real property or motor vehicles. If the application is successful on its merits, the costs of the application will be subsidised by the estate.

RAMSDEN LAWYERS – HOW WE CAN HELP WITH A FAMILY PROVISION APPLICATION

Suppose you are considering making a Family Provision Application against a deceased’s estate for further provision, have received an application as an executor, or are fortifying your will against future contests. In that case, specific advice should be sought about your circumstances.

If you are seeking legal advice, Ramsden Lawyers can assist you. We are happy to arrange an obligation-free initial consultation to assist you in navigating your options under the relevant legislation for your circumstances. Our Litigation and Dispute Resolution Division has specific expertise in assisting executors to navigate applications that challenge a will and supporting eligible individuals who wish to pursue a claim against an estate for further provision.

The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice.  Specific advice should be sought about your circumstances.