Contesting a Will by bringing a Family Provision Application

Originally written by Martin Mallon in his capacity as Associate at Attwood Marshall Lawyers and first published by Attwood Marshall Lawyers on 9 October 2020. Reproduced here pursuant to the permission previously granted for Martin Mallon to use his published work for professional promotional purposes. Copyright in the original publication remains with Attwood Marshall Lawyers. This archival republication is not affiliated with or endorsed by Attwood Marshall Lawyers.

Original publication: https://web.archive.org/web/20201026020452/https://attwoodmarshall.com.au/family-provision-application-qld/

The article reflects the law and circumstances at its original publication date and is not current legal advice. --- ###Introduction### While no one wants to think about their own mortality, living through the current pandemic has prompted many to do so. The pandemic has encouraged a lot more people to ‘bite the bullet’ and review their estate plan, which includes having your Will prepared and signed. However, for many people, losing a loved one can also bring on the devastating reality that they have been left out of a Will or not adequately provided for.

Everchanging family dynamics, blended families and estrangement, combined with the elderly accumulating more wealth, has led to an increase in disputes between family members when it comes to dividing an estate amongst surviving beneficiaries.

Family disputes over estates are all too common and in some circumstances estate litigation matters are inevitable. It is important to have a lawyer who practises exclusively in this complex area of law on your side, to help you move on with your life and assist you in handling these stressful and highly emotional situations.

###Contesting a Will in Queensland by a Family Provision Application### Each state and territory in Australia have different processes and timeframes applicable when bringing a Family Provision Application. When someone dies, if you are left out of the Will, receive substantially less or feel aggrieved, you may be eligible to bring a Family Provision Application seeking an order from the Court for further provision from the estate. Although people often think the Will is being ‘contested’, technically, it is not the validity of the Will itself that is being challenged. It is the lack of provision made for the beneficiary in the Will that is being contested – i.e. the person making the Will did not leave them enough of their assets.

The foundation for bringing a claim in QLD is contained in Part 4 of the Succession Act 1981. Section 41 of the Act sets out the relevant provisions.

###Who is eligible to contest a Will in Queensland?### In Queensland, in order to contest a Will (or if there is no Will under the rules of intestacy), you must be an eligible person. An eligible person is someone who falls within one of the following categories as per S40 of the Act:

• The deceased’s spouse (husband, wife, de-facto partner, civil partner and dependent former husband, wife or civil partner;
• The deceased’s child (natural, step and adopted);
• The deceased’s dependent includes a person who was wholly or substantially maintained or supported by that deceased person at the time of the person’s death who was either:

(a) a parent of that deceased person; or (b) the parent of a surviving child under the age of 18 years of that deceased person; or (c) a person under the age of 18 years.

###What time limits apply to bring a Family Provision Application?### There are strict time limits applicable to claims brought against an estate. In Queensland, a claimant has 6 months from the date of death to provide written notice to the executor or administrator of the estate of his/her intention to bring an application for further provision against the estate. If you don’t give formal notice within the required time limit, the assets of the estate may be distributed, and your rights may be severely impacted and prejudiced (see S.44(3)).

An applicant must then file formal Court proceedings within 9 months from the date of death. If you do not lodge formal Court proceedings within this timeframe, your right of action may be lost forever.

There are limited circumstances when a person can bring a claim outside these timeframes because they need to seek leave of the Court.

If you are seeking provision from an estate, it is imperative to act quickly and seek legal advice to ensure your rights are protected.

###What does a court consider in a Family Provision Application?### Once you are able to prove to the Court that you are an eligible person to bring a family provision claim, the Court looks at these matters in a two-phase process.

Phase one – jurisdictional question: The Court will determine whether you have been left without adequate provision from the estate for your proper maintenance and support.

Phase two – if the first question is answered in the affirmative, the Court will look at what provision ought to be made from the estate.

There is no mathematical formula used to determine the second question and each case is determined on its own merits. A common misunderstanding is that adult children who survive their parents should inherit equally. Nothing could be further from the truth! The Court will examine all the circumstances in the matter. In Queensland, there are general matters the Court will consider, including but not limited to:

• The applicant’s financial position, now and into the future;
• The applicant’s physical and mental health;
• Competing claims;
• Size of the estate;
• Any contributions the applicant has made to the deceased’s estate;
• The relationship between the applicant and the deceased;
• Any other matter that the Court determines is relevant.

###Determining if someone has a claim and likely range of award### By taking detailed instructions and looking at a client’s position and the size of the estate, our experienced team at Attwood Marshall Lawyers can make an assessment to determine a client’s prospects of success.

Based on previous cases, we can indicate a likely range of award they may be entitled to.

###Costs involved in Family Provision Applications### All costs involved in bringing a family provision application are at the discretion of the Court.

Generally, if someone brings an application for further provision and they are successful, some of the costs will be paid from the estate.

If a person brings a family provision application and they are not successful and the Court determines that the claim did not have merits, it is possible that the Court will order costs against that person and they will have to pay for the other parties costs.

Costs are an important consideration in all legal proceedings and particularly estate litigation matters where claimants may have modest means. It is important to seek legal advice in relation to your prospects for success. You do not want to bring an application if it does not have merits – you may risk having an adverse cost order against you.

###When contesting a Will, do you have to go to trial?### In Queensland, the Court requires both parties to attend a mediation before the matter can proceed to a trial. In our experience, 99% of family provision applications are negotiated and settled at or before the mediation stage.

If the parties are unable to reach a resolution at mediation, it is possible an application will go to trial. These cases are rare, and it depends on the facts of the matter, the evidence and the number of parties involved. Going to trial can incur high legal fees which can have a substantial drain on the estate. For this reason, Attwood Marshall Lawyers always try to resolve matters by mediation as quickly as possible.