Case Update
Alagiah v Crouch as administrator of the estate of Ratnam Alagiah (deceased) [2015] QSC 281
The recent decision of the Supreme Court of Queensland in Alagiah v Crouch as administrator of the estate of Ratnam Alagiah (deceased) [2015] QSC 281 demonstrates the Court’s current view on an eligible ‘spouse’ when handling a Family Provision Application.
Pursuant to the Succession Act 1981 (QLD) (“the Act”), a ‘spouse’ of the deceased is an eligible person able to make a family provisions claim. Under the Act, a spouse includes a dependant former husband, wife or registered partner of a deceased person being a person:
- Who was divorced from the deceased; and
- Has not remarried or entered into a registered relationship with any person before the deceased’s death; and
- Was on the deceased’s death receiving or entitled to receive maintenance from the deceased.
Case Law
Mr and Mrs Alagiah were divorced in 2012 after being separated since 2006. There were attempts to effect a property settlement between them however, no agreement was reached or proceedings commenced before Mr Alagiah passed away in 2013. Mr Alagiah did not leave a will so was deemed to have died intestate and as a result Mrs Alagiah as his former spouse did not receive any entitlement from his estate.
Mrs Alagiah commenced a Family Provision Application pursuant to the Act claiming provision from her former husband’s Estate for her proper maintenance and support. The key consideration for the Supreme Court was whether Mrs Alagiah was entitled to apply. She was therefore not a dependant former spouse as defined by the Act and so was not entitled to bring a Family Provision Application.
Mrs Alagiah could not commence property settlement proceeding against her husband’s estate pursuant to the Family law Act as the act refers to proceedings between two living persons who are either parties to an existing marriage or who were parties to a marriage which has been dissolved. Therefore, it meant that she could not commence proceedings after the death of her former husband.
Justice Lyons determined that whilst Mrs Alagiah was divorced from the deceased and had not remarried she was not entitled to receive maintenance from the deceased as she must, at the time of her former husband’s passing had a right to payments of maintenance which would have existed under an order of the Family Court or binding agreement.
How we can help
If you would like further information on Family Provision Applications or would like to discuss whether you are eligible to make a family provision application, please call us on 13 43 63 to speak with our Wills & Estates lawyers in Queensland. Alternatively, get in touch with us online or visit us at any of our Queensland offices are in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.
