Contesting a Will: Family Provision claim

Contesting a Will: Family Provision clam, how it works?

The people and/or charities who benefit from your estate are referred to as “beneficiaries.” You can nominate in your Will who will be the beneficiaries of your estate on your passing.

In Queensland, the Succession Act allows for an “eligible person” to apply to the court to contest a Will if they have not been “adequately provided for.” Such application is referred to as a “Family Provision Application.”

Who can make a family provision application?

The following categories of people may make a family provision application:
1.   Deceased’s spouse;
2.  Deceased’s Dependent;
3.  Deceased’s Child.
The meaning of “spouse”, “dependent” and “child” are defined in legislation.

Who is the “Deceased’s spouse”?
You are the “spouse” of the Deceased if you are their:
(a)   husband or wife;
(b)  de facto partner; or
(c)  civil partner.

You may be the Deceased’s de facto partner if you lived together as a couple on a “genuine domestic basis” for a continuous period of at least 2 years.

What is the meaning of “Dependant”?
A Dependant is a person who is wholly or substantially maintained/supported by the Deceased and one of the following applies:
(a)  you are the Deceased’s parent;
(b)  you are the parent of a child of the Deceased (child must be under 18 when Deceased died);
(c)   you are under the age of 18 years.

Who is a “child” of the Deceased?

You are a “child” of the Deceased if you are their:
(a)   biological child;
(b)   adopted child;
(c)   stepchild.

A “stepchild” is defined as being a person who is a child of the Deceased’s spouse and the relationship of step-child and step-parent has not “stopped.”

Examples of where the relationship between “stepchild” and “step-parent” stops:
(a)  on the divorce of stepchild’s parent and Deceased;
(b)  on the termination of the civil partnership between the stepchild’s parent and Deceased;
(c)   on the ending of the de facto relationship between the stepchild’s parent and Deceased.

Are there any timeframes?
Yes, there are two timeframes:
1.   you must provide notice of your intention to make a claim within 6 months of the Deceased’s death; and
2.  you must file the application with the Court within 9 months of the Deceased’s death.

What do I do if I am acting as the executor?
If you are acting as an executor and you have received either notice or have been served with an application, we recommend that you obtain legal advices and do not make any distributions.

What does the Court consider?
When determining whether adequate provision has been made for the applicant, the Court may consider a range of factors such as:

1. the applicant’s financial position including earning capacity;

2. the applicant’s personal circumstances such as age and health;

3. the relationship between the applicant and the Deceased;

4. the applicant’s character or conduct;

5. the value of the Deceased’s estate;

6.  any contributions the applicant made towards the Deceased’s estate.

If you have any queries as to whether you may be an eligible person or are an executor, we welcome you to contact our office on (07) 3342 0393 or by email admin@franklinfamilylaw.com.au to arrange a time to discuss.