This page provides a step by step guide to contesting a will in Queensland.
- What is a family provision application?
- Who is eligible to make a family provision application?
- What will the court consider?
- How to make a claim
What is a Family Provision Claim?
A Family Provision claim means an application to the Supreme Court of Queensland for a share or a larger share from the estate of a deceased person.
To make a family provision claim you must:
- Demonstrate you are an ‘eligible person’;
- Have been left out of a will or feel you were inadequately provided for in a will; and
- Make your claim within 9 months of the date of death of deceased (having given notice of your intended application within 6 months).
It is not necessary for a grant of Probate or Letters of Administration to have been made before making an application for family provision.
Note Queensland law regarding time restrictions is different to NSW. You may find it explained in greater detail in the Frequently Asked Questions below.
Who is an eligible person to make a claim?
Family provision claims may only be made by an eligible person. In Queensland, section 41(1) of the Succession Act 1981 (Qld) defines an eligible person to include a person who is the deceased’s:
- child; or
Can an ex husband or wife, or a de facto be a spouse?
Yes, a spouse includes a husband, wife, de facto partner and/or civil partner. A dependent former husband, wife or civil partner may also be eligible. It is also possible for a deceased person to have multiple spouses.
Can a step-child or adopted child claim?
Yes, section 40 of the Act defines ‘child’ to mean any child, stepchild or adopted child of the deceased.
How does the Succession Act define someone as a dependant?
A dependant does not include everyone who may have relied upon the deceased financially. To establish eligibility as a dependant you must show you were wholly or substantially maintained or supported by the deceased at the time of his or her death.
In addition you must be:
- the deceased’s parent; or
- the parent of a surviving child under the age of 18 years of that deceased person; or
- a person under the age of 18 years.
What will the Court consider?
Once an Applicant has established they are eligible to make a claim, they must then demonstrate:
- The Will did not make adequate provision for their “needs”.
- The appropriate amount of provision which should be made from the estate.
What type of family provision can be made?
The compensation ordered by the Court or agreed between the parties is usually in the form of a lump sum of cash. It may also include the right to reside in a property (i.e. life tenancy), an ongoing sum of money paid from a trust, and property like a house or motor vehicle.
What factors are relevant to claims?
A wide variety of factors are taken into account when determining family provision claims, including special circumstances based on the relationship. For example, making provision for a spouse is considered paramount. These factors may include:
- obligations or responsibilities owed by the deceased to the applicant
- the value and location of the deceased’s estate
- the financial circumstances of the applicant, including their current and future financial needs
- if the applicant is financially supported by another person
- any physical, intellectual or mental disabilities
- the deceased’s wishes
- the applicant’s age
- any contribution by the applicant which increased the value of the estate
- any support or money or already provided to the applicant by the deceased during their lifetime including their standard of living
- the applicant’s character and the relationship with the deceased
- competing claims on the estate including the needs of those who would stand to receive a smaller share if provision were made
How to make a claim in Qld
In Queensland, Family Provision claims are made by filing an originating application, draft consent orders and a supporting affidavit in the Supreme Court of Queensland.
The application states the orders you are seeking to be made by the Court. Usually this is for provision to be made for the Applicant from the estate for their maintenance, education and advancement in life.
The affidavit must detail why the Applicant is entitled to make the application and that adequate provision has not been made for them. It should also identify all other eligible persons who may be affected by the order sought. Evidence supporting any claims should be added as an exhibit and an estimate of legal costs to trial should also be provided. Read more about costs in our frequently asked questions.
The process includes the estate’s representative preparing an affidavit detailing the estate’s financial position and responding to issues raised by the Applicant. When responding the material should include an estimate of the estate’s legal costs to trial so both parties understand what the estate may be worth by Court.
The consent orders set out a schedule for the parties to file material and an agreed dispute resolution plan which usually includes mediation. If the parties are unable to resolve the dispute at mediation, a date will be set for a QSC or QDC hearing before a Judge or Justice where the matter will be determined.
Frequently asked Questions about Qld Will Contests
Do Any Time Limits Apply?
Family provision claims may be struck out if they are made out of time. If you are a claimant you must:
Give notice to the executor (usually by letter) of your intention to bring a claim within 6 months of the date of death.
Commence Court proceedings, and serve the application, within 9 months of the date of death.
To avoid forfeiting your rights, contact Will & Estate Lawyers Australia today. Our experts will first evaluate your case, discuss the process and provide a step by step guide to resolving all disputes. If you proceed, we help by preparing Court material and responding to counter-arguments advanced on behalf of the estate. We thoroughly prepare for mediation as if it were a Court hearing to ensure you are placed in the best legal position. Call today for a free, no-obligation case assessment on 07 3073 2405.
Who pays the legal costs of the claim?
Costs in family provision claims are usually paid from the estate provided the claim is reasonably made. The Court is not fond of applications made without any merit or genuine prospects of success. In those cases an unsuccessful claimant may be at risk of paying some of the legal costs.
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