At Barron & Allen Lawyers Mackay, we have an experienced and dedicated team of Succession lawyers ready to assist with any estate litigation matters. We have assisted with many complex estate litigation matters, acting for both executors defending a family provision application and applicants seeking to bring a claim against a deceased estate.
You can leave your estate to any one you choose, but under the Succession Act 1981 (Qld), there are three (3) classes of people who are eligible to contest Wills in Queensland if they believe they have not been adequately provided for in a Will, namely:
- Spouses – including marital partners, de facto partners, same-sex partners, civil partners and dependent former spouses. “Spouse” is defined in s.5AA of the Succession Act and includes a de facto partner, as defined in s.32DA Acts Interpretation Act 1954 (Qld,) but only if the relationship had existed for a continuous period of at least 2 years ending on the death of the deceased;
- Children – including step-children, adopted children and unborn biological children born after the Will maker’s death; and
- Financial Dependents – “Dependent” is defined in s.40 of the Succession Act as any person wholly or substantially maintained or supported (otherwise than for full valuable consideration) by the deceased.
One or more persons in the above categories could claim that he, she or they have not been adequately provided for and bring a Family Provision Application (“FPA”) against your estate.
What is a Family Provision Application?
Where an “eligible applicant” believes that a deceased person has not made adequate provision in the Will for their proper maintenance and support, they may make an application to the court to have the situation corrected.
Just because you are “eligible” does not necessarily mean that an application will be successful. It is up to the court to consider the merits of the application, which occurs in a two-stage process:
- Whether or not adequate provision has been made for the applicant’s proper maintenance and support. The applicant must satisfy the court that inadequate provision has been made before the court can consider making any provision in favour of the applicant; and
- If adequate provision has not been made, then the court will consider whether an order for provision will be made, and if so, in what amount. The Will, the applicant’s financial position, the size and value of the estate, and the relationship between the applicant and the deceased are all matters taken into account by the court in making its decision.
There is a compulsory mediation that the parties must attend before the matter can be heard by the court. Critical time-frames apply to commencing an application. If you believe that you have grounds to contest a person’s Will, obtaining timely legal advice may be crucial to your prospects of success.
The impact of such a claim on your estate planning is that significant legal fees may be incurred in defending any litigation (including any threat of litigation) and the entitlements of the beneficiaries who you intend to benefit from your Will may also be significantly affected.
Getting the appropriate legal advice when making a Will can save your estate time and money, and can also help to ensure that your intentions are carried out. When we provide estate planning advice, we consider various strategies by which the risk of an FPA could be minimised, including for example, transfer of assets during your lifetime, re-structuring of asset ownership etc.
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