If a loved one, or someone who was financially supporting you has died, and you have not received ‘adequate provision’, it is possible to challenge the estate (whether there was a will or not). The person challenging an estate is referred to as the ‘applicant’ or ‘plaintiff’ and the legal term for this type of litigation is ‘Family Provision Application’ (FPA). The FPA process varies slightly between the different states and territories.
This blog post is a brief overview of the processes for FPA in QLD and NSW. In doing so, it will outline who can commence an FPA and what factors the Court will consider when making an award for further provision.
In QLD, FPAs are governed by the Part 4 of the Succession Act 1981.
The first step is to determine who has standing to commence an FPA. If you belong to any of the following categories of people, you may have standing:
- Spouse of the deceased
The definition of ‘Spouse’ includes; de facto partner, civil partner and dependent former spouse. (defined under s5AA Succession Act and s32DA of the Acts Interpretation Act 1954)
- Child, Step-child or adopted child of the deceased. (ss40 & 40A Succession Act)
Whilst the definition of ‘child’ and ‘adopted child’ are relatively straightforward, there are some caveats that come along with being a step-child. For the purpose of the Succession Act QLD, a step-child is essentially defined as the child of someone with whom the deceased was in a relationship with at the date of death. Once the relationship between the deceased and the parent is terminated, the child is generally no longer considered a ‘step-child’. The relationship is not automatically considered to have terminated if the parent dies whilst in a relationship with the deceased.
- Dependant of the deceased
The definition of ‘dependent’ is relatively broad and relates to the following groups of people if they were financially dependent upon the deceased at the date of death. These groups are:
- A parent of the deceased;
- A parent of the deceased’s minor child(ren); or
- A person who is under 18 years.
It is more difficult to bring a successful FPA on the grounds of dependence and the Court will only make an order for further provision out of the deceased’s estate if:
- The deceased had been providing a level of maintenance or support to the dependant immediately prior to the deceased’s death;
- The need for the maintenance continues past the deceased’s death; and
- The Court is satisfied that the order should be made. (ss 41 & 41A).
What does the Court consider when awarding further provision?
The Court has wide discretion to consider material that it considers relevant. Some of the main considerations include:
- The size of the deceased’s estate;
- The other beneficiaries’ present and future needs;
- The applicant’s likely future needs;
- This includes earning capacity, any disabilities, and current assets and liabilities.
- The level of the deceased’s support for the applicant prior to death;
- The applicant’s conduct; and
- The deceased’s wishes.
How long do I have to commence an FPA?
You must provide the estate with notice of your intention to commence an FPA within 6 months of the date of death and must commence proceedings within 9 months of the date of death (s41(8)).
In NSW, FPAs are governed by the Chapter 3 of the Succession Act 2006. FPA applications are heard in the Supreme Court, however the rules for Family Provision Application vary slightly from QLD. The most noticeable difference is that there is a far broader definition of who has standing to commence an FPA, being:
- The Spouse or de facto partner (defined under 21C Interpretation Act) of the deceased at the date of death
- A child of the deceased, the definition of a ‘child’ includes;
- A child adopted by the deceased;
- A child for whose long-term welfare the deceased cared.
- A former spouse of the deceased;
- A person who was wholly or partially dependent of the deceased person and who was a member of the deceased’s household.
- A person with whom the deceased was living in a close personal relationship at the date of death.
As you can see, the test for standing in NSW is relatively broad and many people, so long as they were dependent on the deceased, can commence an FPA. If standing is established and an FPA is commenced, there are a number of considerations that the Court will take into account before making orders, including:
- The nature and duration of the relationship with the deceased;
- The nature and extend of obligations owed to by the deceased to the applicant and any other beneficiaries;
- The extent (value) of the estate;
- The assets and earning capacity of the applicant;
- Any physical, intellectual or mental disability of the applicant;
- The age (and life expectancy) of the applicant;
- Evidence of the deceased’s wishes (other than the will);
- The conduct of the applicant before and after the deceased’s death.
In NSW there are also ‘claw back’ provisions known as ‘notion estate orders’. In effect, these orders mean that certain property disposed of by the deceased prior to death can be taken into account by the Court when assessing the size of the deceased’s estate. These orders can be made in relation to property that the deceased disposed of:
- Within one year of the date of death; or
- Within 3 years of the date of death, if the applicant can prove that the deceased disposed of the property with the intention of denying or limiting provision to the applicant.
The limitation period to commence an FPA in NSW is also more generous then in QLD. A claim must be brought within 12 months of the date of death although, if you are considering making an FPA, then the estate should be notified of your intention within 6 months of the date of death.