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Left out of a Will? Who can bring a Family Provision claim in Qld and NSW

Contesting a will. Family provision claim.

If you have been left out of a Will or not adequately provided for by someone who you have a family relationship to or were dependent on, it is likely you have the right to make a family provision claim for a Family Provision Order, Attwood Marshall Lawyers Senior Associate Lucy McPherson (pictured) explains.

If a person has read a Will and found out the estate does not give them as much as they had expected, they might want to bring a Family Provision claim.

A Family Provision claim is an application to the Supreme Court of your state for a share, or a larger share, from the estate of a deceased person. Where adequate provision has not been made for the proper maintenance and support of certain statutory categories of persons relating to the deceased, the Court may make an order that such provision be made out of the estate of the deceased.

Who can bring a Family Provision claim – what types of ‘family members’?

Only certain categories of people are eligible to apply to the Court for a family provision order. An ‘eligible person’, is usually a spouse, child or dependent.

In New South Wales, the following are “eligible persons” who may apply to the Court for a family provision order:

– the wife or husband of the deceased
– a person who was living in a de facto relationship with the deceased (including same sex couples)
– a child of the deceased (including an adopted child but not including a stepchild. For a stepchild to be eligible they must also demonstrate dependency on the deceased person – see discussion below)
– a former wife or husband of the deceased
– a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased
– a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.

A “close personal relationship” is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, who are living together, one or each of whom provides the other with domestic support and personal care.

 

In Queensland, the following are “eligible persons” who may apply to the Court for a family provision order:

a) a spouse (including a husband/wife, de facto partner, civil partner or dependent former husband or wife or civil partner);
b) a child of the deceased person (including a stepchild or adopted child); and
c) a dependent of the deceased person.

A “dependent” of the deceased person means:

a) a parent of the deceased person; or
b) the parent of a surviving child of the deceased person under the age of 18 years; or
c) a person under the age of 18 years; who was being wholly or substantially maintained or supported by the deceased person at the time of the deceased person’s death.

Whilst a step-child is automatically eligible to apply for a family provision order in Queensland, under New South Wales legislation stepchildren are not automatically eligible to apply for a family provision order. However, a stepchild may still bring an application in New South Wales if they meet certain criteria. They must demonstrate:

a) they were, at any particular time, wholly or partly dependent on the deceased person (for instance, dependent on the deceased person for accommodation); and
b) they were, at any particular time, a member of the household of which the deceased person was a member.

What will the court consider when it assesses a Family Provision claim?

Once eligibility is established, the legal test applied in family provision applications is, in summary, as follows:

  1. whether there is inadequate provision for the applicant’s proper maintenance, education and advancement in life under the Will of the deceased or the intestacy rules (this is a question of fact although it necessarily involves some value judgment); and
  2. if so, what if any, provision ought to be made out of the estate in favour of the applicant (this is a discretionary exercise).

The Court will examine all relevant circumstances. In particular the following matters are relevant for the Court’s determination of the two stage test as set out above:

– the relationship between the applicant and the deceased person
– any obligations or responsibilities owed by the deceased person to the applicant
– the value and location of the deceased person’s estate
– the financial circumstances of the applicant, including their current and future financial needs
– whether the applicant is financially supported by another person
– whether the applicant has any physical, intellectual or mental disabilities
– the applicant’s age
– any contribution made by the applicant to increase the value of the estate
– whether the deceased person has already provided for the applicant during their lifetime or from the estate
– whether the deceased person provided maintenance, support or assistance to the applicant
– whether any other person is responsible to support the applicant
– the applicant’s character
– any other claims on the estate
– any other matter the court may consider as relevant.

When and how can a person make a Family Provision claim?

 A claimant for family provision must act promptly as strict time limits apply. In New South Wales, a claim for family provision must be filed within twelve months from the date of death of the deceased. In Queensland, a claimant must notify the executor or administrator of their intention to bring a family provision claim within six months from the date of death and the claim must be filed in Court within nine months from the date of death of the deceased.

The notice of intention to bring a family provision claim should be in writing and must be given within six months of the date of death.

The Court has discretion to direct an application be heard out of time. The onus is on the applicant to establish sufficient grounds for extending the time limit. The most significant considerations for the Court in exercising the discretion include: whether there is an adequate explanation for the delay; whether the beneficiaries are prejudiced and whether the estate remains intact.

If a family provision claim is successful, who pays for the costs of a Family Provision order?

Costs are at the absolute discretion of the court. Usually, they follow the event. This means that the successful party in legal proceedings will usually have some of their legal costs paid by the other party. Specifically in relation to proceedings to contest a Will, the court may have regard to whether a party has failed to comply with the rules or a practice direction of the court, whether irrelevant material was put before the court, the size of the estate, any offer of settlement made by the parties and any other matter that the court considers relevant.

If the Judge makes an order for provision for the applicant, the estate will usually pay the applicant’s standard costs. If the Court considers there were genuine reasons for mounting the challenge, the Court may award the applicant’s costs be paid from the estate.

If the applicant is unsuccessful and the Judge makes no order for provision for the applicant, the Judge may make no order as to costs (meaning that the applicant is responsible to pay his or her own costs) or may order the applicant to pay the executor’s costs of defending the proceedings (meaning that the applicant is responsible to pay his or her own costs as well of the costs of the other party). This is one of the many reasons we recommend that you seek advice from a lawyer who specialises in this area of law. We will assess your case and advise you on the strength of your case and likely outcomes, including any cost orders.

How can Attwood Marshall Lawyers help with a Family Provision claim?

If you would like more information in relation to family provision claims you are welcome to contact our office with any inquiries. We are located at Brisbane, Gold Coast, Robina and Kingscliff, Northern NSW.

Please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email [email protected] or free call 1800 621 071 to book your free 30 minutes appointment with one of our dedicated Estate Litigation lawyers.

We have a dedicated Estate Litigation team that practices exclusively in this complicated area. Please click here to access our team brochure with details of our professional staff.

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Lucy McPherson

Lucy McPherson

  • Senior Associate
  • Estate Litigation
  • Direct line: 07 5506 8255
  • Mobile: 0400 230 522
Attwood Marshall Lawyers

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