What is a Family Provision Application?
A Willmaker generally has the right to make a Will leaving what they own (or their estate) to anyone they choose including family, friends, charities and so on.
However, it is important to understand that if a Willmaker fails to make provision (or adequate provision) for certain eligible people such as their spouse or children, for example, then those people might choose to challenge the Will under what is known as Family Provision Application.
It is important to understand that the law regarding Family Provision Applications differs from state to state. However, despite a Willmaker leaving no provision or limited provision for an eligible applicant in their Will, the Succession Act 1981 (Qld) (Act) allows courts in Queensland to award eligible applicants provision from the deceased’s estate.
Can anyone make Family Provision Application?
No, only certain eligible applicants can make a Family Provision Application. Although, it is important to note that being eligible does not necessarily mean an applicant will be successful. Eligible applicants include:
- the deceased’s spouse including de facto spouses and in limited circumstances may also include a divorced spouse;
- the deceased’s child/children including the deceased children, stepchildren and adopted children;
- the deceased’s dependants.
Are there any time limits?
Yes. It is important to be aware of the time limits that apply to Family Provision Applications in Queensland.
Initially, a potential applicant must give written notice to the executor within 6 months of the date of death stating their intention to make a Family Provision Application. Failure to do so may mean that the estate is legitimately distributed leaving nothing in the estate in a worst-case scenario.
Applicants must start the legal action within 9 months of the death of the deceased.
After 9 months from the date of death, it may be possible to make a Family Provision Application. However, the court must allow the out of time application. The outcome of an application will depend on the circumstances of each individual matter.
What factors do the Court consider?
When deciding a Family Provision Application, the courts will consider various factors including:
- the value of the estate;
- the deceased’s relationship with the applicant;
- the applicant’s financial position and health and other personal factors;
- whether the deceased made any gifts/provision to the applicant during their lifetime;
- whether the applicant made any contributions to the deceased’s estate;
- any disentitling conduct by the applicant.
What to do if you are:
- A Willmaker
While you cannot prevent an eligible applicant from challenging your Will through a Family Provision Application, you can reduce their prospects of success with good legal advice and careful estate planning.
There are various strategies that can be put in place to help to minimise risks, including careful planning when it comes to the payment of superannuation and life insurance after death. It is crucial if you are thinking of cutting someone out of your Will to seek legal advice about how best to structure your estate plan to minimise the risks of a challenge to your Will.
- An Executor
You may find yourself appointed as an executor in a Will. Being an executor is an onerous task which can become quickly complicated in circumstances where a Family Provision Application is made by a beneficiary who has been excluded or who believes that they have not been adequately provided for under the Will. As an executor, seeking legal advice as soon as possible after death is essential to ensure you fully understand the role you have been asked to undertake and your duties.
- A potential Family Provision Applicant
Being left out of a loved one’s Will can be distressing and oftentimes might come as a shock. Here, it is important to remember the time limits that apply to making a Family Provision Application. This means that it is important to seek legal advice and possibly take steps as quickly as possible to understand your options and the law as a potential Family Provision Applicant.
If you would like to discuss any of the issues raised in this article, please contact our Succession and Estates Team.