Where there’s a Will, there’s a way: Family Provision Applications
17 July, 2018Estate Planning, Estate Administration and Disputes, Trusts and SuperannuationFamily LawNews & UpdatesWill and Estate PlanningWill DisputeWill DisputesWills & Estates
Failure to leave adequate provision can lead to a claim against a Will
The existence of a Will may not always be enough to completely safeguard a person’s estate from claims, especially when a person has many relatives and a large estate. One of the most common reasons for an application against an estate is that the deceased failed to leave adequate provision for a person who falls within the definition of ‘eligible person’ as defined in the Succession Act 1981 (Qld) (‘the Succession Act’).
Who can make an application and do time limits apply?
An ‘eligible person’ includes a spouse, child, stepchild, adopted child or dependant of the deceased. In Queensland, this person has six months after the death of the deceased to provide the estate with written notice of their intended family provision claim and nine months to file an origination application in the Court.
Once in Court, an applicant must prove that the deceased’s will did not provide ‘adequate provision’ from the estate for their ‘proper maintenance and support’. Adequacy is determined by whether the deceased had the responsibility to make provision for the proper maintenance and support of the claimant. The Succession Act requires the Court to primarily consider the ‘needs’ of the applicant at the time of the hearing as against the needs of any other beneficiaries, leaving the deceased’s wishes as a secondary consideration.
Questions that the court considers in a Family Provision Application
Ultimately, when deciding whether there is inadequate provision for the applicant’s proper maintenance and support, the Court considers the following questions:
- Did the deceased make adequate provision for the proper maintenance, education and advancement in life of the claimant?
If not, what provision ought to be made out of the deceased’s estate for the applicant?
- In answering these questions, the Court also considers the applicant’s financial position, the size and nature of the deceased’s estate, the relationship between the applicant and the deceased (including “disentitling conduct” where relevant) and the relationship between the deceased and the other people who have legitimate claims on their estate.
On some occasions, Courts have taken into account the deceased’s ‘moral duty’ to the applicant. However, each case is relative and what may be considered adequate in one instance may not be adequate in another.
Estate planning as a tool to minimise risks of a challenge
These applications and claims can run up costs for both sides that in many instances come out of the estate, shrinking the estate and disadvantaging other beneficiaries.
Proper Estate Planning is like an insurance policy over your wealth. A good Estate Planning lawyer will ensure that all issues are discussed, so that your estate planning is built in such a way to minimise the risk of an estate challenge or other unnecessary legal expense.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice.