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The Factors Relevant to a Successful Family Provision Application

By 7 June 2023September 7th, 2023Wills & Estates
The Factors Relevant to a Successful Family Provision Application

When a family member dies, those who expect to benefit from the deceased’s estate do not always receive what they expect. For various reasons, a person may not get the amount they expect or be left out of the will altogether.

A person who considers that they have not been adequately provided for in the deceased’s will can make a Family Provision Application (FPA) under Queensland’s Succession Act 1981 (the ‘Act’). An FPA can be made where the deceased made a Will or where the deceased died intestate (without a will).

An FPA can only be made by eligible applicants.  Under the Act, eligible applicants include a spouse, child or dependant of the deceased. Spouse can include a married husband or wife, or a de facto partner of greater than 2 years or civil partners, and includes same-sex couples. A child may include a stepchild or adopted child of the deceased. Former spouses can only apply in very limited circumstances where they have not remarried and are receiving maintenance from the deceased at the date of death.

A dependent includes a parent of the deceased, a child of the deceased who is under 18 years or a parent of a child of the deceased who is under 18 years and who was wholly or substantially maintained or supported by the deceased at the time of his or her death.

The factors involved in deciding an FPA

A range of factors are considered by the court in determining an FPA.

Once a person making an FPA has established they are an eligible applicant, they must also demonstrate:

  1. Firstly, that the deceased’s will did not make adequate provision for their needs; and
  2. Secondly, that the court should order appropriate provision from the estate for the applicant’s maintenance, education and advancement in life.

In assessing whether adequate provision has been made the court takes into consideration the following discretionary factors:

  • the size and nature of the estate;
  • the current financial position of the applicant, including their current and future health and financial needs;
  • the nature of the relationship between the deceased and the applicant;
  • the nature of the relationship between the deceased and the other beneficiaries or those who have competing claims on the estate;
  • any responsibilities or obligations the deceased owed the applicant during their lifetime;
  • the level of financial dependency of the applicant on the deceased;
  • whether the deceased made any promises or statements to the applicant;
  • whether the applicant contributed to the deceased’s estate  in a way that increased the estate’s value;
  • the standard of living to which the applicant has become accustomed;
  • whether there is any conduct by the applicant which might disentitle them from being provided for in the will;
  • the applicant’s age and any physical, intellectual or mental disabilities;
  • whether the applicant is financially supported by another person.

At its discretion, the court then decides whether adequate provision should be made for the person making the FPA. Many of the above factors are also relevant to this second question. The result may be an order for provision from the estate, which can be in the form of a lump sum of cash to the applicant, a right to reside in a property (i.e. life tenancy), ongoing instalments of money paid from a trust, or property such as a house or motor vehicle.

If the application is successful, the court may make an order for the applicant’s legal costs to be paid from the estate. Conversely, if the FPA is unsuccessful, the applicant may be liable for legal costs, particularly if the FPA is considered without merit or did not have genuine prospects of success.

Time limits in making an FPA

An applicant must give written notice to the executor of the estate of their intention to commence an FPA within 6 months from the date of death.  An applicant must commence court proceedings in relation to an FPA  within 9 months of the date of the  death.

An FPA can be made notwithstanding that the executor has not obtained a Grant of  Probate or Grant of Letters of Administration.

An applicant should seek expert legal advice before notifying an executor of their intention to make an FPA. At Delaney & Delaney, we can help a person who wishes to make an FPA by assessing the merits of their claim having regard to the above factors which are relevant to their particular matter. We invite you to contact us for an initial consultation if you would like to obtain advice about making an FPA.