The most common way of contesting a Will is by bringing a Family Provision Application (FPA) against a deceased estate. It is an Application where by a person seeks an Order from the court for provision (money from the estate).
To be successful, it must be shown that adequate provision has not been made from the estate for the person/s proper maintenance and support from the deceased’s person’s estate.
Who is eligible to bring a Family Provision Application?
Section 41 of the Succession Act 1981 (Qld) provides that a deceased’s persons spouse, child or dependent can make an application to the court for adequate provision to be made from the estate of the deceased person for his/her proper maintenance and support.
A “spouse” includes a husband or wife, a de facto partner. A deceased’s dependent former husband or wife or a civil partner or a former dependent spouse.
A “child” means, to a deceased persons, any child, step-child or adopted child of that person.
A “dependent” means to a deceased person, any person who is wholly and substantial maintained and supported (otherwise then full valuable consideration) by that deceased person at the time of the person’s death being an:
- A parent of that deceased person;
- A parent of the surviving child under the age of 18 years of the deceased person; or
- A person under the age of 18 years.
How does the Court decide if the Family Provision Application will be successful?
The legal test, followed by the Court in Family Provision Applications is a two stage process as follows:
1.The first stage requires the court to determine whether the person making the Application has been left with adequate provision for his/her proper maintenance and support.
The second stage only arises if the Court determines that the person making the Application has indeed been left without adequate provision.
If the Court determines that adequate provision has been made for the proper maintenance and support of the person making the Application, the Court will dismiss the Application and further provision (money) will not be given.
2.The second stage requires the court to determine what provision (money) ought to be made out of the deceased’s estate for the person making the Application.
It is up to the Court’s discretion as to how much (if any) money is to be given to the person making the Application and each case is decided on its own merits. Strict time limits of six (6) months and nine (9) months from the date of death of the deceased apply. Accordingly it is important that specialist legal advice is obtained as soon as possible after the death.
Get in touch with us
If you have any questions, or wish to discuss contesting or defending a Will, 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.