Top 7 Questions about Family Provision Claims in Queensland
When someone passes away, questions often arise about inheritance. In cases where a person believes that they have not been adequately provided for by a deceased family member (whether or not a Will was left), certain laws may enable them to make a family provision claim to help make the situation fairer.
This article discusses common questions people may have about contesting a Will in Queensland. The information is general only and we recommend obtaining legal advice tailored to your circumstances.
- Am I Eligible to Make a Family Provision Claim?
In Queensland, the Succession Act 1981 gives the court discretion to order provision from the estate of a deceased person on the application of an eligible spouse, child or dependant, if adequate provision has not been made from the estate for the person’s proper maintenance and support.
A spouse includes married, de facto and civil partners and a child includes biological children, adopted children and stepchildren. A dependant includes someone who was wholly or substantially maintained or supported by the deceased person at the time of their death and was a parent of the deceased, the parent of a surviving minor child of the deceased, or a person under the age of 18 years.
An experienced estate lawyer can assess your relationship with the deceased and the surrounding circumstances to help determine your eligibility to make a family provision claim.
- Are There Time Limits to Make a Family Provision Claim?
Yes, strict time limits apply. An applicant must give notice of their intention to make a family provision claim to the estate’s legal representative within six months of the deceased’s death, and the application must be made within nine months of the date of death.
It is essential to act promptly and seek legal guidance to ensure this deadline is met. Only in limited circumstances, might the court grant an extension of time, and an out-of-time application is at the court’s discretion and is not guaranteed.
- Can I Make a Family Provision Claim if there is no Will?
Yes. If someone dies without a valid Will in Australia, they are said to die intestate and the law in the relevant jurisdiction sets out how their assets will be distributed. Whether or not a family member will receive an inheritance under these laws depends on their relationship with the deceased, and the specific circumstances.
If a person dies intestate, an eligible person may be able to make a family provision claim if the proposed distribution under the intestacy laws does not adequately provide for their proper maintenance and support.
- Will I Have to go to Court for a Family Provision Claim?
Some family provision claims end up in court, however, many are resolved through negotiation or mediation. Mediation usually offers a less formal and more cost-effective way to reach an agreement. The executor of the Will has the power to negotiate and settle claims, however, in doing so, should be guided by a lawyer experienced in family provision claims.
If an agreement cannot be reached, court proceedings may be necessary.
- What Does a Court Consider When Determining a Family Provision Claim?
When deciding a family provision claim, the court considers a range of factors to determine whether adequate provision has been made for the applicant’s proper maintenance and support and whether they should be provided for, or further provided for, from the estate.
Each case is different and must be assessed on its specific circumstances. Typical factors that may be considered include:
- The applicant’s circumstances – age, health and financial needs
- The applicant’s character and relationship with the deceased
- The size of the estate
- The financial needs and resources of other beneficiaries or the strength of any competing claims
- Any contributions the applicant made to the deceased’s welfare
The court aims to achieve a fair and equitable outcome for all parties involved.
- How Much Will It Cost to Make a Family Provision Claim?
The costs of making a family provision claim can vary depending on the circumstances, the complexity of the case and whether the matter proceeds to court. It is important to discuss fees and potential costs upfront with your lawyer. If the matter proceeds to litigation, the court has discretion regarding how costs will be awarded.
- How Long Will a Family Provision Claim Take?
The timeframe for resolving a claim can vary significantly. Many claims are resolved within a few months, especially if settled through negotiation or mediation. However, if court proceedings are required, the process can take longer. Seeking professional advice early from an experienced estate lawyer can help ensure the best possible outcome and potentially expedite the process.
Conclusion
This is general information only and you should obtain professional advice relevant to your circumstances. Family provision claims can be complex, and the families involved are usually also dealing with emotional and other challenges. Whether you are making or defending a family provision claim, it is important to consult an experienced lawyer specialising in estate law to discuss your specific circumstances and receive personalised advice.
If you or someone you know wants more information or needs help or advice, please call 07 32816644 or email mail@powerlegal.com.au.
