The information we need in a family provision application and why we need it
We often get enquiries from people wanting to contest or defend a will or an estate, and they become overwhelmed when we begin requesting and gathering their information and documentation for the next steps in the proceedings.
Many people are surprised at what information is required and sometimes, reluctant to give a solicitor some of their most personal information. It understandably becomes particularly difficult if it means handing over that information to a family member they are fighting with or estranged from. What we try to explain is that the information we request is critical in supporting or defending a family provision claim.
This blog is specifically about claims against a will or an estate if you feel you have been unfairly left out or inadequately provided for, or if you are an executor/administrator defending a claim against a will or estate (family provision claims). The information required may be different in proceedings where someone is contesting the validity of a will.
The information we need for a family provision claim, and why we need it is set out below.
What we need and why we need it
In Queensland, you can contest a will or an estate if you are an eligible person and you believe you have not been adequately provided for in a will or by the estate of a deceased person.
When a person brings a claim against an estate in Queensland, they are required to file an application in a court. With an applicant’s application, there must also be an affidavit supporting the claim for further provision from the estate. In the same proceedings, the executor or administrator is often also required to file an affidavit.
What is required to be included in those affidavits has been set out by the courts.
The courts look at a number of factors when considering whether a person (the applicant) has been left without adequate provision for their proper maintenance and support. These factors include:
- the size of the estate and the financial position of the applicant, beneficiaries and any other eligible persons;
- the standard of living to which the applicant is accustomed, and their current and future needs, and that of their dependants;
- the health of the applicant and any other eligible persons, including any physical, intellectual or mental disability;
- the nature and extent of the applicant’s relationship with the deceased person;
- any financial and/or non-financial support which was given by the deceased person to the applicant during the deceased person’s life;
- any financial and/or non-financial contributions made by the applicant to the size of the deceased person’s estate;
- any statements and/or promises made by the deceased person about how they wished for their estate to be distributed on their death, including any will or codicil;
- any changes in arrangements after the statements, promises, will and/or codicil were made;
- any other matter that the court considers relevant.
However, none of the above factors will be conclusive. All competing claims (i.e. claims brought against the estate by other eligible applicants, and/or named beneficiaries) must be considered and weighed against all other factors.
Given the above, it is necessary when we are preparing an affidavits that we gather all relevant information from the outset, including evidence of that information (for example, bank statements, tax returns, Centrelink statements, medical reports and the like). We also often require evidence of communications between the parties and the deceased person, such as text messages, emails and call logs.
Some people are understandably reluctant to hand over some of their most personal information to a lawyer, who will be providing those details to the court and also often a family member, friend or carer of a deceased person with whom they are not on pleasant terms, and sometimes, have been estranged from for an extended period of time.
It is also important that clients don’t withhold information or documentation, are honest with us and that all information and details are provided as soon as possible. We understand that people don’t want to air their dirty laundry and share personal family secrets or disputes with a lawyer, but often when we haven’t been given the whole truth from the get-go, that truth is revealed at a later date and can be critical to the success of a claim. Moral of the story: don’t lie to your lawyer.
Once we have all the information we need, it is put together in an affidavit with all required, supporting documentation and filed in the court. It is then also necessary to serve the affidavit on all other parties involved in the proceedings or their solicitors.
It is also a requirement at the beginning of a matter that a timetable be put forward to the other parties, agreed and then filed in the court. This timetable is called a “Directions Order” and sets out specific dates for when steps in the matter must be taken.
The Directions Order will provide a date for a response to an applicant’s initial affidavit. If the person responding is putting forward a competing claim against the estate or an executor/administrator is defending the estate, they will also have to disclose the same or similar information as set out above in an affidavit.
The need for disclosure of information and documentation, honesty and transparency continues throughout the matter. We may ask for more recent bank statements, tax returns, financial statements, medical reports and the like, at any time during the proceedings.
We understand that gathering information and speaking about family issues is uncomfortable for some, particularly with a lawyer who you may have never met. It can also be difficult recalling dates and details when events happened many years ago. It is not an easy task, and we are empathetic to our clients’ positions when it comes to their personal details, family situations and their claims. We work with you to put forward your best claim and aim to get you the best result.
How we can help you
If you have any questions or concerns, or an enquiry about contesting or defending a will or an estate, we would be happy to discuss with you. Please feel free to reach out to 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.