What is a Family Provision Application and how does it work in Queensland?

All State jurisdictions have laws, which allow eligible applicants to bring a claim against a deceased estate for adequate provision.

In Queensland the relevant provisions are contained in Part 4 of the Succession Act 1981 (Qld).

Who are the eligible applicants?

Eligible applicants, include a spouse (including by marriage or a de facto partner), a child (including biological, adopted and step-children with limitations), or another dependant of the deceased (a person substantially financially dependent on the deceased).

Critical timeframes for bringing an application

A written notice of intention to being a family provision application must be given to the personal representative of the estate, or the executor of the deceased’s will within six (6) months of the date of death of the testator. The application must be brought no later than nine (9) months after the date of death.

While the Court may extend these deadlines, such extensions will only be allowed if a strong arguable claim and a valid reason for the delay are demonstrated by the applicant.

What is the procedure for bringing an application?

Proceedings are initiated in either the Supreme Court or District Court, depending on the monetary jurisdiction within which the size of the estate will fall. The process involves filing an Originating Application, the necessary supporting affidavits, and a draft directions order.

• The supporting affidavits must contain copies of the relevant documents (for example, death certificate, Grant of Probate or other testamentary documents made by the deceased) as well as relevant evidence from the applicant as to:

• Eligibility to apply (applicant within the relevant class of persons and no adequate provision has been made in the estate for the applicant);

• Financial position of the applicant;

• The applicant’s knowledge of any other eligible applicants;

• Details of the assets and liabilities of the estate;

• The applicant’s best estimate of legal costs to be incurred in the matter;

• Any other material relevant to the Court’s determination of the application (this could be evidence relating to the relationship between the applicant and the deceased, applicant’s medical condition etc).

Once an application is filed in the Court, the parties are encouraged to agree on the directions for the conduct of the proceedings. These would be the list of the critical dates for steps to be taken by each party in the matter.

Mediation is a critical step in the proceeding, and Courts encourage early resolution.

If the parties are unable to resolve the matter at mediation, the application is then listed for a trial.

What does a Court consider in making a decision?

The Court considers these applications in a two-stage process:

1. Whether or not adequate provision has been made for the applicant's proper maintenance and support. The applicant must satisfy the Court that inadequate provision has been made before the Court can consider making any provision in favour of the applicant; and

2. If adequate provision has not been made, then the Court will consider whether an order for provision will be made, and if so, in what amount. The size of the estate, the provisions under the will, the applicant's financial position and the relationship between the applicant and the deceased are all matters taken into account by the Court in making its decision.

All costs in the proceeding are usually paid from the estate funds; however, the Court can make a different order depending on the circumstances of the case.

If you are considering whether you are eligible to make a family provision application against a deceased estate, you should act fast and obtain professional legal advice to secure your position.

We specialise in estate disputes and litigation, including complex disputes and family provision applications. We provide cost-effective and result-oriented legal services with compassion and care.

Contact us on 1800 779 997 or info@collettlaw.au for more information.