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'Tis the season ♫ to get nothing under a Will... but there’s hope – let us help you with a claim

In Queensland, if a person has been left without ‘adequate provision’ from a deceased estate, they can contest the Will if they are an eligible person. This is usually referred to as a ‘Family Provision Application’ and it is at the heart of succession law due to the freedom of attestation. This freedom, however, is subject to a moral obligation to provide for ones immediately family and dependants.


Our team at Richard Hoare & Co have been practicing in Wills and Estates Law since 1983. We are here to guide you through the process to the best possible outcome.


If you are considering contesting a Will, or if you have a question, we encourage you to call us on 07 3209 7000 for a free initial case assessment.


You should be aware though that every State and Territory in Australia has different rules which apply. There are also different time limits and eligibility even different depending on where the deceased died.

We know that costs are often a factor, so you should have comfort knowing that almost all of our work with contesting estates is on a “no win, no fee” basis.


GROUND FOR CONTESTING


In Queensland you have grounds to contest a Will if:

  • you are an eligible person

  • you believe that you have been left without ‘adequate provision’ for your proper maintenance and support out of the estate of the deceased.

RELEVANT CONSIDERATIONS


The courts generally consider a range of factors, including:

  • the financial position of the beneficiaries (and any other claimants);

  • the nature and extent of your relationship with the deceased;

  • any support provided to you by the deceased during his or her life;

  • any statements or promises made by the deceased to you about how he or she would divide their estate when they pass;

  • your standard of living;

  • contribution you may have made to the extent of the deceased's estate;

  • any other matter that the court may deem relevant in their discretion.

It is very difficult to define this idea of ‘adequate provision’ and it varies from each case that comes before us.


This underlying notion, however, is all about the moral obligation of the testator.


In Bosch v Perpetual Trustee Co (Ltd) (1983)[1] it was said that the legislation was designed to enforce the moral obligation of the testator to use his or her testamentary powers for making proper and adequate provision for the support of a person, having regard to the means and deserts of several claimants and the urgency of the various moral claims upon his or her bounty. Their Lordships in that case made it clear that the court must place itself in the position of the testator and consider what he or she ought to have done to treat them as a wise and just person rather than fond and foolish.


Over time, however, there were differing views about this idea of moral duty.


In Permanent Trustee Co Ltd v Fraser (1995)[2] for example, the president of the Court of Appeal went on to suggest that the courts should not longer use a sense of moral duty. Whereas, Chief Justice Gleeson of the High Court of Australia in 2005 went on to suggest the moral duty test is a good test. He indicated that statute should be read as to when this idea of moral duty should be applied. Justices Callinan and Heydon went on to also indicate that they found it convenience and generally useful to utilise the concept and they have not been wrong to do so. Justices Gummow and Hayne, however, in that case indicated there was no role for the concept.


Perhaps famously it was put quite well in the approach taken by the High Court in the case of Worladge v Doddridge,[3] where Williams and Fullagar JJ approved the following statement of the South Australian Supreme Court:

Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door — it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the backyard — it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail.[4]

WHO IS AN ELIGIBLE PERSON?


As eluded to earlier, in order to contest a Will in Queensland, section 41 of the Succession Act 1981 (Qld) requires a person to fall within one or more of the following categories of eligible persons:

  • the deceased’s spouse; and / or

  • the deceased’s child (including step-child); and / or

  • the deceased’s dependant.

The terms "spouse", "child" and "dependant" are defined in the Succession Act 1981 (Qld). Here is some more information on this:


Spouse


In Queensland, a spouse may be:

  • the deceased’s husband or wife; or

  • the deceased’s de facto partner; or

  • the deceased’s registered partner (pursuant to the Relationships Act 2011); or

  • the deceased’s former husband, wife or registered partner.

Child


In Queensland, a child may be:

  • the deceased’s biological child; or

  • the deceased’s unborn child; or

  • the deceased’s lawfully adopted child; or

  • the deceased’s stepchild.

Dependent


In Queensland, a dependent may be:

  • the deceased’s parent;

  • a parent of a child of the deceased (provided that the deceased’s child is under eighteen);

  • any person under the age of eighteen who was being maintained by the deceased when they passed, regardless of their relationship with the deceased (for example, it could be a grandchild, extra-martial affair, brother, sister or otherwise).

Essentially, a person can be ‘dependant’ if they are ‘wholly or substantially maintained’ by the deceased person when they die.


HOW TO MAKE A CLAIM


A Family Provision claim can only be made in Queensland where:

  • there is real property (that is, land) owned by the deceased situated in Queensland; and / or

  • · The deceased was domiciled (living permanently) in Queensland at the date of his or her death and owned personal property elsewhere, and / or held other assets.


LIMITATION DATE FOR FAMILY PROVISION CLAIM AND RISKS


Section 41 of the Succession Act 1981 (Qld) sets out the time limitation for bringing a family provision claim for proper maintenance and support of an eligible person, which is 9 months from the date of the death.


Any attempt to administer the estate where there is notice on the intent to apply or alternative you know of someone who could be an eligible person is very risky.


This is why, in such circumstances, we always advise to wait out the time limitation period.


In 1966 the Full Court, in Riechelmann v Donkin,[5] determined that where an estate has previously been fully administered, an application for extension of time for the bringing of such an application cannot succeed, because there remains no estate from which further provision may be made. Their Honours, Hanger and Gibbs took that view.

Justice Gibbs dealt with the issue comprehensively as follows (p 113, 114, 117):

“…the words ‘the estate of the testator’ [the statutory reserve from which further distributions may be ordered]… refer to all the property that belonged to the testator and has not yet passed to any other person absolutely and in his own right. Once the title of a beneficiary has become complete, so that he holds in his own right the property given to him by the will, that property ceases in any ordinary sense to be part of the estate of the testator, and becomes part of the estate of the beneficiary. The [Testator’s Family Maintenance Acts] give no power either to the Court to order that provision be made out of the estate of a beneficiary, or to the executors to recover former assets of the testator’s estate that have been distributed to the beneficiaries entitled to receive them. … Once an asset ceases to be an asset in the testator’s estate, and the beneficiary to whom it is given has received it in his own right, there is no power to subject that asset to the incidence of an order under the Acts, or to require the beneficiary to restore the asset to the estate or to make a payment in satisfaction of the order. … If a will requires the executors to hand over the residuary estate to other persons to hold it as trustees, once the estate has been so handed over it ceases to be the estate of the testator and is beyond the power of the Court to affect by an order under The Testator’s Family Maintenance Acts. If however the executors are themselves the trustees, once the estate has assumed the character of a trust estate it equally ceases to be part of the testator’s estate; in equity it belongs to the beneficiaries and the court is not empowered to divest what has been vested in them.”

That view was later followed in several single judge decisions.[6]


Further, in Holmes v Webb,[7] it was observed:

“The appellant seemed to accept, and it cannot be doubted, that final distribution to beneficiaries precludes the making of an order out of a deceased estate under Part IV of the Succession Act: see Re McPherson [1987] 2 Qd R 394. The position in other jurisdictions, such as New South Wales, and the decision of Easterbrook v Young (1997) 136 CLR 308, are to be distinguished on the basis of differences in the relevant legislation.”

You should be aware that against the above backdrop there is a formidable array of differing State and Territory legislation. It was previously argued[8] that the Full Court in Donkin has been overruled by the High Court in the matter of Easterbrook v Young.[9] However, in the case of Re McPherson,[10] Justice Connolly expressed the view why this could not conceivably be the case.


In the matter of Easterbrook,[11] the High Court was dealing with the New South Wales Testator’s Family Maintenance and Guardianship of Infants Act 1916 (the Act). The Court’s approach was strongly influenced by provisions of that Act which are said not to have any counterpart in the Queensland legislation.[12] Their Honours remarked (p 316):

“…An actual distribution of the deceased’s property to persons beneficially entitled thereto shall not preclude the making of an order, even out of the distributed assets. Section 11(3) is explicable only on that footing. The Act in so providing assumes that the subsection at least covers the case where executorial or administrative duties have already been fully performed before such distribution has taken place. Thus, by the very terms of the Act, if an application is made in due time, the court may make provision out of any asset which came to the hands of the personal representative from the deceased through his death and the grant of probate or letters of administration.” “As we have emphasized, to give to the court’s order the effect of a codicil operating as on the death of the deceased, underlines the fact that the provision of the beneficial interest under the will is no bar to the court’s power to make provision for maintenance if needs be out of what is theirs or, but for the order, would be the beneficial property of a beneficiary under the will. Section 11(3) underlines the policy, which has the result that an actual distribution does not place the asset beyond the reach of the court’s power to order maintenance.”

As eluded to, in the matter of McPherson, Justice Connolly said these points were (p 398):

“obviously critical for the decision of the High Court”

Chief Justice de Jersey in the matter of Baker v Williams & Brunner[13] remarked on these points:

“But just as the High Court attended closely to the precise terms of the legislation in Easterbrook, so this Court is constrained by the terms of the Succession Act 1981. Easterbrook is not determinative of this matter, because it concerned materially different legislation, and because it did not lay down any general principle which is determinative of the present application notwithstanding the statutory differences.” “The proper construction of the Queensland legislation must condemn the respondent’s application. So does well-established appellate and first-instance authority in this State. Most of those decisions were given in the context of the High Court decision on which the respondent now depends. The basis on which it was distinguished is compelling.” “Those considerations aside, there is in the end the common-sensical desirability of preserving the certainty and integrity of an executorial administration regularly completed a long time before the current issues may have been raised.” “But that said, it is the proper construction of the Act, as confirmed in previous unassailable decisions of this Court, which determines the fate of this application, and for reasons previously traversed, that means the respondent’s s 41 application must fail.”

We therefore draw the inference that should any litigation be commenced outside of the limitation period in the State of Queensland and where the estate is administered, it is (in all probability) unlikely to succeed. But this does not mean it won’t success as this in the discretion of the courts and each case is different.


GETTING A COPY OF THE WILL


When a person dies, it is not uncommon for a relative or other person to be unaware of the content of the Will or to be prevented from accessing it.


To obtain a copy of the deceased’s last Will, you will need to contact the executor or solicitor who acts for the estate.


Here in Queensland, you are entitled to inspect and obtain a certified copy of a deceased’s last Will where you are either:

  • directly mentioned in the Will;

  • a spouse, parent or child of a deceased person;

  • an eligible person as discussed above;

  • a parent or guardian;

  • a creditor of the estate with a claim on the deceased’s bounty;

Generally, a person who is in control of the last Will must provide you a certified copy upon request if you are entitled to it and/or allow you to inspect it. This is set out in s 33Z of the Succession Act 1981 (Qld).


CONCLUSION


Don’t sit back idly waiting and hoping for something if you have been left without under a Will. You could be prevented from making claim.


Here at Richard Hoare & Co, we know the ins and outs and how to help you.


Trust in us.


Disclaimer: This publication is not intended to be comprehensive nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication.


REFERENCES


[1] [1983] AC 463.


[2] 36 NSWLR 24.


[3] (1957) 97 CLR 1.


[4] Ibid, quoting Re Harris (1936) 5 SASR 497, 501.


[5] [1966] Qd R 96.


[6] Re Burgess [1984] 2 Qd R 379; Re Oakley [1986] 2 Qd R 269; Re McPherson [1987] 2 Qd R 394; Re Prufert (unreported, 4 April 1991, OS 123/1991); and Re Parry (unreported, 11 March 1991, 23/1990).


[7] (unreported, Court of Appeal, 18 August 1992, OS 542/1989).


[8] Baker v Williams & Brunner (as executors of the estate of Baker) [2007] QSC 226.


[9] (1977) 136 CLR 308.


[10] [1987] 2 Qd R 394.


[11] Ibid.


[12] Baker v Williams & Brunner (as executors of the estate of Baker) [2007] QSC 226.


[13] (as executors of the estate of Baker) [2007] QSC 226.


© Scott A. Green, Associate Solicitor

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