In order to understand how family provision applications work, who qualifies, and how courts assess claims in Queensland estate disputes, we have to take a look at recent years estate disputes and how they have become more and more prevalent. These disputes can often span many years and are almost always expensive and destructive to family relationships.
While you may leave your estate to any one you choose, under the Succession Act 1981 (Qld), there are three classes of people who are eligible to contest estates in Queensland on the basis that they have not been adequately provided for.
Those classes of people are spouses (including marital partners, de facto partners including same-sex partners, and civil partners, dependent former spouses), children (including step-children, adopted children and unborn biological children born after a person’s death) and various categories of financial dependents.
Where a deceased person has not made adequate provision from their estate for the proper maintenance and support of the above classes of people, then a member of that class can make an application to the Court to have the situation corrected (known as a family provision application).
It will be up to a Court to consider the merits of any family provision application made. The Court considers these applications in a two-stage process:
- Whether or not adequate provision has been made for the applicant’s proper maintenance and support. (The applicant must satisfy the Court that inadequate provision has been made before the Court can consider making any provision in favour of the applicant); and
- If adequate provision has not been made, then the Court will consider whether an order for provision will be made, and if so, in what amount.
The size of the Estate, the provisions under the Will (if any), the applicant’s financial position and the relationship between the applicant and the deceased are all matters taken into account by the Court in making its decision.
The financial impact of such a claim is that significant legal fees may be incurred in defending any litigation (including any threat of litigation) and the entitlements of the beneficiaries who you intend to benefit may also be significantly affected. This means that your intentions may not be carried out. Furthermore, the estate cannot be finalised until any litigation is resolved which may result in a significant delay to the administration of the estate.
It is not possible to prevent an eligible person from making a family provision application. The only ways to mitigate the risk would be to give consideration to the disposal of your assets prior to your death or restructuring ownership of your assets during your lifetime.
If you are concerned with the threat of a family provision application, it is important that you seek advice from a specialist estate planning lawyer to help you draft your Will correctly and devise strategies to protect your assets for those who you actually wish to benefit.
If you require assistance with your Estate Planning, or have any further questions on how you can protect your estate from the threat of a family provision application, contact our experienced Wills and Estates team for expert advice and guidance.