Family Provision Application Litigation Series Part 2
Estates are often contested among the family of the deceased. A spouse, child or dependant of a deceased person may claim they are entitled to funds from the estate arising from their relationship or dependency on the deceased individual. Under the Succession Act 1981 (Qld), ‘eligible persons’ are entitled to apply to the court for adequate provision to be made for their proper maintenance and support from a deceased estate. This is referred to as a Family Provision Application (FPA).
Notwithstanding the contents of the deceased individual’s will, by way of an FPA, the court has the ability to order that ‘eligible persons’ be provided with further provision from a deceased estate.
Family Provision Application – Who is eligible to bring a claim?
An ‘eligible person’ to bring an FPA against a deceased estate based in Queensland includes:
(a) the spouse of the deceased, including a husband or wife, de facto partner or civil partner;
(b) a child of the deceased (including adoptive children); or
(c) a dependant of the deceased.
To be recognised at law as a de facto partner for the purposes of bringing an FPA, you must prove that you and the deceased were living together as a couple on a genuine domestic basis, taking into account each of the following circumstances:
(a) the nature and extent of your common residence;
(b) the length of their relationship;
(c) whether or not a sexual relationship existed;
(d) the degree of financial dependence or interdependence, and any arrangement for financial support;
(e) the ownership, use and acquisition of property;
(f) the degree of mutual commitment to a shared life, including the care and support of each other;
(g) the care and support of children (which can include children not resulting from the relationship);
(h) the performance of household tasks; and
(i) the reputation and public aspects of their relationship.
In addition to the above, in order to be entitled to bring an FPA, the applicant and the deceased must have been living as a couple on a genuine domestic basis for a continuous period of at least two years, ending on the deceased’s death.
Family Provision Application – How long do you have to bring a claim?
In order to bring an FPA in Queensland, you must:
(a) within six months from the date of death of the deceased, give notice of an intention to bring a claim against the estate; and
(b) within nine months of the date of death of the deceased, file the FPA against the estate in court.
Different limitation dates will apply in each of the states and territories. If you think you might have a right to bring an FPA, you should contact us as soon as possible so we can advise the limitation period that will apply to your circumstances.
In some instances, you can obtain special permission from the court to proceed with an FPA out of time based on a consideration of the following factors:
(a) whether there is an adequate explanation for the delay;
(b) whether any prejudice may be suffered by the beneficiaries;
(c) whether there is any unconscionable conduct by the applicant; and
(d) the strength of the applicant’s case.
Considering there is a strict limitation period, potential applicants must act promptly to preserve their rights to bring a claim. To receive advice about how to make an application, please contact the Litigation team at Ramsden Lawyers for a free consultation to discuss your matter.
When will the court order family provision?
In determining whether an applicant ought to receive further provision from the estate, the court will apply the following two stage test:
(a) whether inadequate provision has been made for the applicant’s proper maintenance, education and advancement in life under the deceased’s will or the intestacy rules; and
(b) if the provision is inadequate, what (if any) provision should be made to the applicant out of the estate.
The following factors will be considered by the court in determining under the two-stage test whether any provision ought to be made to the applicant:
(a) the net value of the estate (i.e. its size after debts, funeral, testamentary and other expenses have been deducted);
(b) the financial position of the applicant;
(c) the age, sex and health of the applicant (you);
(d) the current means of the applicant;
(e) the closeness of the relationship between the applicant and the deceased;
(f) contribution of the applicant to the building-up of the deceased’s estate; and
(g) the character and the conduct of the applicant. The court has power to refuse the application if, in its opinion, the applicant’s character and conduct disentitles them to a share or an increased share of the estate;
(h) whether there are any other claims to the estate, and if so, the nature of such claims; and
(i) any other factors the court may consider relevant.
Bringing a claim in Queensland vs bringing a claim in NSW
If your claim relates to a New South Wales based estate, you will have 12 months from the date of the deceased’s death to file an FPA in court.
Notional estate order
In NSW, the court has the unique ability to make a ‘notional estate order’. In the event that there are no assets in the estate or the assets are insufficient for a family provision order, the court has the ability to make orders pertaining to assets which did not directly belong to the deceased at the time of death.
There are two instances where property may be subject to a notional estate order including where assets were:
(a) transferred to the beneficiaries during the ordinary course of the estate administration; or,
(b) the deceased did not have explicit ownership but still maintained a certain level of control over the assets; for example, assets in a superannuation fund or a family trust.
In some situations, the deceased may attempt to transfer assets prior to their death to try and prevent any FPA being made in the future in respect of those assets. In this event, the court has a wide discretion to ‘claw back’ any transfer which was made within three years prior to the date of death. However, while the court has a broad discretion surrounding notional estate orders and the ability to nullify a transfer of assets, this is only where the order would not interfere with reasonable expectations in relation to the property.
To claim any maintenance or support from a deceased’s estate, it is crucial that an application is brought within the time limitation. This is important as an extension of the time limit for making an application will only be granted in exceptional circumstances.
The FPA will, in effect, freeze the Executor from being able to make any distributions out of the estate until the matter is resolved. Failure to act swiftly may result in the Executor distributing the proceeds without considering the merits of the application and consequently, the applicant being denied maintenance from the deceased’s estate.
Whether you are making a Family Provision Application or believe there is an illegitimate claim to the estate, Ramsden Lawyers can assist you. We are more than happy to arrange an initial consultation to assist you in navigating the procedures set out under the succession legislation. As outlined above, there are strict time limits in which a Family Provision Application can be brought so it is best to act quickly if you believe there is a potential application which can be made. Please do not hesitate to get in contact with us to arrange an initial consultation.
The content of this article is intended to provide a general guide to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your particular circumstances.
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