Wills and Estates Litigation…
Have You Been Left Out of a Will?In Queensland, if you are a spouse, child or dependent of a deceased but have not been provided for or adequately provided for under their Will, you may be eligible to make a claim against their estate commonly known as a family provision application. In certain circumstances, the Court may award eligible persons who have not been provided for or adequately provided for under a Will, provision or further provision against a deceased person’s estate.
How long do I have to file a family provision application?Eligible persons have six (6) months from the date of death of the deceased to notify the executor / representative of the estate of their intention to bring a family provision claim against the estate and nine (9) months from the date of death to file the application in a competent Court. It is very important that you file the application against the estate within this time, otherwise, you may no longer be able to bring the application against the estate.
Are you eligible to make a family provision application?According to the Succession Act 1981 (Qld), the following persons are eligible to bring a family provision application against an estate: –
- Husband, wife or de facto of the deceased (Section 5AA);
- Child of the deceased (Section 40); and
- Dependent of the deceased (Section 40).
Will this process result in an equal distribution of the estate?The Court typically will not redistribute the estate based on inequality, rather where the inequality has led to an inadequate provision for a beneficiary or potential beneficiary. Therefore, if all beneficiaries have been provided for adequately as deemed by the Court, the inequality of estate distribution will not hinder the distribution of the estate or the Will (Section 41 (1)(A)).
How does the Court ascertain what an ‘adequate provision’ is?The Court will look at various factors when determining whether someone should have been provided or whether they have been ‘adequately’ provided for by the deceased, including but not limited to: –
- the size of the deceased’s estate;
- the financial standing of the person who has brought the application for family provision (the ‘Applicant’) and any other beneficiaries or potential beneficiaries;
- the demographic of the Applicant (Age, gender overall health);
- the relationship the Applicant had with the deceased; and
- the independence or dependence of the Applicant on the deceased.