The Succession Act 1981 (Qld) (the Succession Act) provides how deceased estates are administered in Queensland.
If someone has been unfairly left out of a Will, they may be able to apply pursuant to the Succession Act for further provision from that estate.
The Succession Act provides that only the deceased person’s spouse, child or dependant are eligible to apply for further provision from an estate. However, you might be surprised to learn that even after the breakdown of a relationship, you may still be entitled to contest the estate of your ex-spouse.
While there are requirements for each category of person entitled to apply, spouse can mean the spouse of the deceased at the date of death, or a dependant former spouse of the deceased (section 5AA of the Succession Act).
Section 5AA includes a person who was divorced or separated from a deceased person (but have not remarried or re-partnered), and were entitled, on the date of death, to maintenance (i.e. financial support) from the deceased.
On separation (when both spouses are still alive), whether an ex-spouse is entitled to maintenance is usually a question for the Family or Federal Circuit Court.
If, prior to death, proceedings have been commenced in the Family or Federal Circuit Court for an order in respect of spousal maintenance, those proceedings can be continued on the death of an ex-spouse by the Legal Personal Representative of the deceased’s estate, and the Family Law Act 1975 (Cth) will continue to apply.
However, if property proceedings have not been commenced prior to the death of a former spouse, the surviving dependent former spouse may apply for further provision from the deceased’s estate pursuant to the Succession Act.
Evidence will need to be considered by the court when determining whether an ex-spouse is entitled to maintenance from the estate of a deceased person. In respect of de facto couples, whether a relationship existed will also be dependent on evidence.
Get in touch with us
If you have any questions, or wish to discuss contesting an estate, please contact Turner Freeman Lawyers’ Wills and Estates Team on 07 3025 9000. Jenna Hutchinson and Laura Hagan practise exclusively in Succession Law and would be happy to have a chat with you.
