Posted December 10, 2014

When to use a Family Provision Application

If you have been left out of a Will or not adequately provided for by someone whom you are dependent upon, it is likely that you have rights to pursue by making a Family Provision Application.   If you have a valid claim, Kerin Lawyers will act for you on a no-win, no fee basis*

One of the most common ways to contest the will of a deceased is through a Family Provision Application.

A Family Provision Application involves a person (Applicant) within a defined relationship to the deceased applying for a share of the estate, or a larger share of the estate, on the basis that the deceased person has failed to make ‘adequate provision’ for his or her ‘proper maintenance and support’

A defined relationship to the deceased includes;

  • Spouse or defacto spouse;
  • Children or step-children; or
  • Dependant

The term ‘dependant’ is defined as a person who was being ‘wholly or substantially maintained or supported by the deceased person’ at the time of the deceased person’s death. A ‘dependent’ can be either;

  • A parent of the deceased person
  • A parent of a surviving child under the age of 18 years of the deceased person; or
  • A person under the age of 18 years

Strict time limits apply

To be eligible for the Family Provision Application, the applicant must adhere strictly to the time limits.

There are two critical time limits that apply to Family Provision claims in Queensland.  The time limits are:

  • within six months from the date of death of the deceased, the personal representative (usually the executor) of the estate must be provided with written notice of an Applicants intended family provision claim.
  • within nine months from the date of death of the deceased, an Originating Application must be filed in the Court, along with supporting affidavit material, outlining the basis of the Applicants claim.

If either of the above limitations are missed, unless there are exceptional circumstances, generally a Court will not be willing to grant an extension of time.

Family Provision Applications are made under Part IV of the Succession Act 1981 (Qld) (“the Act”). Section 41 of the Act states the relevant principles that a Court will consider when deciding on the success or failure of a Family Provision application.

Section 41

(1)   If any person (the “deceased person”) dies whether testate [with a Will] or intestate [without a Will] and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

(1A)  However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.

A Family Provision Application can be used to contest the will of a deceased person if the Applicant meets eligibility of a defined relationship and if the deceased was providing financial support of the Applicant prior and up-to the date of the deceased person’s death.

To be successful in the application, the Applicant must demonstrate to the Court that “adequate provision” has not been made from the estate for their “proper maintenance and support”. The terms “adequate provision” and “proper maintenance and support” can be difficult to prove and the Court takes into account a number of relevant competing circumstances, including:

  • The Applicant’s financial position, age, health status and future prospects;
  • The size and nature of the deceased’s estate;
  • The nature of the relationship between the application and the deceased;
  • Evidence of intention prior to the deceased person’s death that the Applicant would receive or inherit shares of the estate;
  • The relationship between the deceased and other persons who might have a legitimate claim against the estate (including beneficiaries); and
  • The financial position, age, health status and future prospects of other potential beneficiaries that have been named in the will.

An application can be dismissed if the Court believes the Applicant has already been adequately provided for.

*to discuss the terms of our no-win, no fee service for family provision matters, please contact our offices to arrange an appointment with our experienced lawyers.

If you are seeking information or considering making a Family Provision Application, contact Kerin Lawyers today on 1300 529 937 or complete our online enquiry form to find out how our highly qualified and experienced legal team can help you. We understand the difficulty of the situation and will be with you every step of the way to help you resolve your matter as quickly and cost effectively as possible.

Important family provision cases, see:

Darveniza v Darveniza & Drakos as Executors of the Estate of Bojan Darveniza and Ors [2014]  http://archive.sclqld.org.au/qjudgment/2014/QSC14-037.pdf

Vigolo v Bostin (2005) 221 CLR 191

Singer v Berghouse (1994) 181 CLR 201

Collins v McGain [2003] NSWCA 190

Van Dyke v Sidhu [2013] NSWCA 198

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