It’s an unfortunate reality that some families end up in legal conflict after the death of a loved one when one or more people feel they have been inadequately provided for from the deceased’s will. One beneficiary may feel another beneficiary has been favoured over them, or that the deceased ignored their needs despite their close relationship, and seek legal redress to rectify the situation.
To do so the aggrieved party needs to make a family provision application (FPA) under Queensland’s Succession Act 1981 to seek provision from the deceased’s estate. Eligible claimants can make this application to contest the distribution of assets under the will, arguing for a greater share than what was allocated to them in the will or under intestacy laws. Understanding the process and requirements of making an FPA is crucial for those seeking to assert their rights under Queensland law.
Understanding FPAs
An FPA is a legal proceeding initiated by an eligible person, including spouses (including de facto partners), children (including stepchildren and adopted children), and dependents of the deceased.
To make a successful FPA in Queensland, claimants must establish several key factors:
- The claimant must demonstrate a qualifying relationship with the deceased, which could be that of a spouse, child, or dependent.
- The claimant must prove their financial need or dependency on the deceased’s estate for support.
- It must be shown that the provision made for the claimant in the deceased’s will or under intestacy laws is inadequate for their proper maintenance, education, or advancement in life.
The court also takes into account other factors which are discussed below.
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Initiating the application process
The process of making an FPA begins with lodging a formal claim with the Supreme Court of Queensland. It is advisable for claimants to seek legal advice and representation beforehand from experienced solicitors specialising in estate litigation to ensure the applications has merit and meets all the necessary legal requirements.
In support of an FPA the applicant will need to bring together relevant documentation including financial records, evidence of dependency, and any correspondence or agreements with the deceased regarding provision.
Before initiating court proceedings, parties may attempt to resolve the dispute through mediation or negotiation to reach a financial agreement facilitated by their legal representatives.
If mediation fails or is deemed inappropriate, the FPA is lodged with the Supreme Court, along with the required forms and supporting documents. The court will hear the application to consider its merits, during which the evidence is presented and legal arguments are made by both parties.
Factors the court takes into account
The court has discretionary powers to make orders for provision from the deceased’s estate based on the circumstances of each case, taking into account factors such as the size of the estate, the financial needs of the claimant, and whether the deceased had any ‘moral obligation’ towards the beneficiary making the claim.
Other factors considered in determining ‘adequate provision’ for the person making the FPA include:
- Whether the applicant materially contributed to the estate of the deceased during the latter’s lifetime.
- Is there any conduct by the applicant which should disentitle them from provision, such as alcoholism or drug dependence?
- What is the nature of the competing claims on the will? Why did the will-maker regard other dispositions as preferable or superior to that of the applicant?
If an agreement is reached between the parties or the court issues orders for provision, the terms of the settlement or orders will be legally binding and enforceable.
As with most claims to the court, strict time limits apply. An FPA must be lodged within the statutory time limit, generally within six months from the date of the grant of probate or letters of administration.
Speak with our wills and estate experts
Making a family provision application under Queensland’s Succession Act is a complex legal process that requires careful consideration of eligibility criteria, gathering of compelling evidence, and procedural requirements. By understanding the intricacies of an FPA, eligible individuals can assert their rights and seek fair and just distribution of assets in accordance with Queensland law. If any of the issues raised in this article are relevant to your situation, contact our professional Will Dispute Lawyers Gold Coast and experienced team at ROC Legal as soon as possible to discuss your case.
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