Family Provision Applications and Claims

Family Provision Applications and Claims

180938410

Mitch Jamieson is a Legal Practitioner Director with Everyday Lawyers, Rockhampton

This post is presented as general information only: it should not be relied on as legal advice.

A “Family Provision Application” or a “Family Provision Claim” is one of the more common ways of contesting a will in Queensland. A family provision application is a court application for an order that a person receive greater provision from the estate of a deceased person. A family provision application is made on the basis that the amount provided for a person in an estate is inadequate.

Firstly, I’ll define some legal terms:

  • An Applicant is a person applying to a Court for orders.
  • An Estate is the property and money owned by a deceased person.
  • The Personal Representative of an estate is the person responsible for managing the estate (ie: the executor or administrator).

The legal basis for a family provision application is contained within section 41(1) of the Succession Act 1981 (Qld), which can be viewed here. The relevant section reads as follows:

  1. 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.

To be eligible to make a family provision application, the Applicant must be a spouse, child, or dependent of the deceased. The definition of “spouse” covers defacto partners, including homosexual defacto partners.

In considering whether the provision made to a person is adequate, relevant factors include the relationship between the Applicant and the Deceased, and the financial needs of the Applicant. Some examples of people who may have a case for a family provision application include;

  • A spouse who has not been left enough to maintain themselves after the passing of the deceased;
  • A child who was mistreated by the deceased, and was completely left out of the Will;
  • A person who was close and financially dependent on the deceased, but does not stand to benefit from the estate (for example, the deceased may have neglected to make a Will);
  • A person who provided special care and/or financial support to the deceased, but was not recognised in the Will for this contribution.

It can be very stressful and expensive for a personal representative to deal with a family provision application, even if the family provision application is made without good grounds. We therefore recommend that you obtain advice from a lawyer to minimise the risk of a family provision application against your estate.

If you are considering making a family provision application, there are two time limits to keep in mind:

  1. An Applicant has six months from the death of the deceased person to send to the personal representative of the estate written notice of their intention to make a Family Provision Application.
  2. An Applicant has nine months from the death of the deceased person to make the Application to the court, and to either serve the Application or to notify the personal representative of the fact that they have made an Application.

These time limits are one of the reasons that lawyers often advise personal representatives to wait six months before distributing the estate: if the personal representative distributes the estate before this time has passed, the personal representative may become personally liable if an application is made against the estate.

If you have not sent the written notice to the personal representative of the estate within six months of the death of the deceased person, there is nothing stopping you from sending the notice late or from making the Application. The problem is that after the six month period, if the personal representative has not received the notice, the personal representative may begin distributing the estate without fear of legal repercussions. If the estate is already distributed it may be pointless to make a family provision application.

If you do not apply to the court within nine months of the death of the deceased person, you will need to seek the leave of the Court to make your Application out of time. You will need a good reason for applying out of time, and there is no guarantee that you will be successful in obtaining leave.

If you’re in Rockhampton or elsewhere in Queensland, contact our office for an appointment for advice on making a Family Provision Application, protecting your assets from a Family Provision Application, or minimising the risk of a Family Provision Application.