There are a number of circumstances in which a Will can be challenged – this includes Further Provision Claims.
What is a further provision application?
A further provision application involves a person, within a defined relationship to the deceased, who considers that they have not been adequately provided for under a will and they wish to apply to the court to seek a share or larger share of the estate.
The “defined relationship” varies in law from state to state and is often referred to a person’s “eligibility” to make a further provision claim to court.
In Queensland, the jurisdiction of the Queensland courts to determine further provision applications is found in section 41(1) Succession Act 1981 (Qld), which provides:
‘If any person (the deceased person) dies whether testate or intestate 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.’
Who is eligible to make a family provision application?
In Queensland, the following persons are eligible to make a further provision application:
- a spouse,
- a child, or
- a dependent of a deceased person.
People outside of these categories are not eligible to make a family provision application in Queensland.
The term “spouse” also includes defacto partners but a person’s defacto spouse status can be challenged during a further provision application.
The term ‘spouse’ is defined in section 5AA Succession Act 1981 (Qld) to mean:
- the husband or wife of the deceased person;
- a de facto partner as defined in the Acts Interpretation Act 1954, section 32DA, who lived together with the deceased person on a genuine domestic basis for a continuous period of at least two years ending on the deceased person’s death;
- a civil partner; or
- a former husband or wife, defacto or civil partner who was dependent on the deceased and was or entitled to receive maintenance from the deceased.
The term ‘child’ means in relation to a deceased person:
- a biological child;
- a stepchild;
- an adopted child.
For more information on the “adopted child” category, please see the following article about an adopted child https://www.robbinswatson.com.au/adoption-when-law-transcends-biology/
The term ‘dependant’ means a person who was being wholly or substantially maintained or supported by the deceased person (otherwise than for full and valuable consideration) at the date of the deceased person’s death being:
- 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.
When must a family provision application be commenced?
- A person must give notice of their intention to make a claim for further provision to the executor within six months after the death of the deceased person; and
- the application must be filed within nine months after the death of the deceased person.
Factors the Court considers when deciding application
The Court must be satisfied that the provision that was made for the applicant (if any) was not adequate for that person’s proper maintenance and support.
The case law on factors that the court takes into consideration when determining an application, include:
- the size and nature of the deceased person’s estate;
- the applicant’s financial position, age, state of health and prospects for the future;
- the totality of the relationships between the deceased person and others having a legitimate claim on the estate;
- the financial position and circumstances of the beneficiaries named in the will.
If you want to know more, please contact me for a complimentary consultation on 07 5576 9999.
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