A Family Provision Application is the most common method of seeking provision from a deceased’s person Will.

Section 41 of the Succession Act 1941 (Qld) sets out the principles that a court will take into account when deciding such an application:

(1) If any person (the “deceased person”) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

(1A) However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.

Requirements of Family Provision Applications

To bring a Family Provision Application (FPA) a person must:

1. Demonstrate they are an ‘eligible person’;

2. Have been left out of a Will or are inadequately provided for in a Will; and

3. Make their claim within 9 months of the date of death (note the requirement to give  notice of the application within 6 months of the date of death).

Further, an application can be made whether or not a Grant of Representation (Probate or Letters of Administration) has been issued.

Who is an ‘Eligible Person’?

A Family Provision Application can only be made by an ‘eligible person’.

In Queensland, section 41 of the Succession Act 1981 (Qld) indicated this to mean:

• Spouse

• Child

• Dependent

Meaning of Spouse

Section 5AA of the Succession Act 1981 (Qld) provides the meaning of spouse

(1)  Generally, a person’s spouse is the person’s—

(a) husband or wife; or

(b) de facto partner, as defined in the Acts Interpretation Act 1954 (the AIA), section 32DA; or

(c) civil partner, as defined in the AIA, schedule 1.

(2) However, a person is a spouse of a deceased person only if, on the deceased’s death—

(a) the person was the deceased’s husband or wife; or

(b) the following applied to the person—

(i) the person was the deceased’s de facto partner, as defined in the AIA, section 32DA;

(ii) the person and the deceased had lived together as a couple on a genuine domestic basis within the meaning of the AIA, section 32DA for a continuous period of at least 2 years ending on the deceased’s death; or

(ba) the person was the deceased’s civil partner; or

(c) for part 4, the person was—

(i) a person mentioned in paragraph (a), (b) or (ba); or

(ii) the deceased’s dependant, former husband or wife or civil partner.

Meaning of Child and Dependant

Section 41 of the Succession Act 1981 (Qld) provides the meaning of child and dependant as follows:

Child means, in relation to a deceased person, any child, stepchild or adopted child of that person.

Dependant means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death being—

(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.

Time Limits and Protections

Section 41(8) of the Succession Act 1981 (Qld) provides:

“Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made.”

In addition to this time limit, under section 44(3) of the Succession Act 1981 (Qld), personal representatives of an estate (executors/trustees) are afforded protection from claim against them if distribution of the estate was properly made 9 months or more after the death of the deceased, provided:

(a)  not earlier than 6 months after the deceased’s death and without notice of any application or intended application under section 41(1) or 42 in relation to the estate; or

(b)  if notice under section 41(1) or 42 has been received—not earlier than 9 months after the deceased’s death, unless the personal representative receives written notice that the application has been commenced in the court or is served with a copy of the application.

Deciding Family Provision Applications

The legal system is complex, and the court applies various criteria when assessing an application. Essentially an Applicant needs to demonstrate that they have not received ‘adequate provision’ for their ‘proper maintenance and support’ in life.

Generally, the courts will consider extensive criteria in determining what provision should be made. This includes (but is not limited to):

• The Applicant’s financial position and ability to make a means;

• The size and nature of the deceased’s estate;

• The totality of the relationship between the Applicant and the deceased;

• The relationship between the deceased, beneficiaries and other persons who might have a claim against the estate; and

• The age, medical history, disabilities and physical and mental health of the Applicant and any other beneficiary or eligible person;

• The contribution by the Applicant which has increased the value of the estate;

• Any monies or support provided by the deceased to the Application during their lifetime;

• Competing claims on the deceased’s bounty;

• The ‘moral duty’ of the deceased person to provide for their loved ones and eligible persons.

The courts have extensively explained the difficulties of determining the meaning of ‘proper maintenance’ and this is precisely why it is so important to immediately engage a lawyer.

In Re Harris [1936] SASR 497 this idea of proper maintenance for advance in life was considered ‘…more than a provision to keep the wolf from the door – it should at least be sufficient to keep the wolf from pattering round the house or lurking in some outhouse in the back yard – it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail’.

Commencing Your Family Provision Claim

In Queensland, Family Provision Applications are made by filing an originating Application, draft consent orders and an affidavit in the Supreme Court of Queensland.

It is necessary that the Application includes the orders the person is seeking to be made, which generally includes provision for the Applicant from the estate for their maintenance, education and advance in life.

Alongside the Application and orders will be a detailed Affidavit which covers the relevant principles as to why the Applicant is entitled to bring the Application and that adequate provision has not been left for them. It is also necessary to identify other eligible persons who could be affected and the nature and extent of the estate (if known) amongst other evidentiary supporting material.

Given that this process is complex, it is crucial to engage the right lawyers who understand the process and how to maximize your potential entitlement from an estate.

For further information on making a claim against an estate, click here.