Perhaps you’ve been left out of a Will, or you think that the Will of the deceased is unfair. In Queensland, the Succession Act 1981 (Qld) (‘The Act’), confers rights to specifically defined dependants, (see below) to bring a Family Provision Application.
What is a Family Provision Application?
A Family Provision Application is an application to the court, for an order that the applicant have a share, or greater share in the deceased’s estate.
Who can make a Family Provision Application?
Pursuant to the Act, the application can only be brought by someone who was the spouse (including de facto partner or former husband/wife), child (including step-child or adopted child) or dependant person (for example the parent of the deceased or a person under the age of 18), of the deceased.
However, despite the above, the court has the power to reject the applicant’s claim if there is evidence that the applicant’s relationship with the deceased, or their prior conduct disentitles the applicant from receiving proceeds from the estate.
What is the basis of the application?
To be successful in the application, the applicant must prove that the deceased did not make an ‘adequate provision for the proper maintenance and support’ of the applicant.
The court will take the following factors into account, when determining if and in what portion of the estate, the applicant should receive:
- The applicant’s financial position;
- The size and nature of the deceased’s estate;
- The totality of the relationship between the applicant and the deceased;
- The relationship between the deceased and other persons who might have a claim against the estate; and
- The age, capacities, and financial positions of other potential beneficiaries.
What are the time limits on Family Provision Application?
In Queensland, a person must give notice that they intend to make a Family Provision Application within six (6) months from the date of death of the deceased. Furthermore, the Family Provision Application must commence within nine (9) months after the death of the deceased person.
How do I make an application?
Making a Family Provision Application can be a sensitive and complex matter. Affinity Lawyers on the Gold Coast can guide you through the process of the application and offer a free initial consultation.
Please do not hesitate to contact our experienced Gold Coast Lawyers on (07) 5563 8970 or by email: admin@affinitylawyers.com.au.
