Family provision claim

Under the Succession Act 1981 (Qld), an eligible spouse, child or dependant of a deceased person can contest a deceased estate/will for proper maintenance and support by commencing an action in court known as a “family provision claim”.

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On such an application, the court will exercise its discretion to make such provision as the court thinks fit and proper out of the deceased estate for the applicant.

In exercising its discretion, the court will consider the following factors:

  • the extent to which the claimant was maintained or supported by the deceased person before their death;
  • the need for the continuation of the maintenance or support;
  • the circumstances of the claimant and the estate; and
  • that it is proper that provision is made for the claimant.

Who can make a claim for provision?

An eligible person, such as a spouse, child or dependant of a deceased person can make a claim for provision. each of these is defined below:

  1. Spouse”is defined to include a de facto partner, a registered partner and a former spouse or de facto partner of the deceased person.
  2. Child”includes a stepchild and an adopted child.
  3. Dependant”of the deceased includes a parent of the deceased, a parent of a minor child (under 18 years) of the deceased, and any person under the age of 18 years who was substantially or wholly maintained by the deceased at the time of their death.

A family provision claim can be made in Queensland if the deceased was living in Queensland at the time of their death and/or the deceased owned real estate in Queensland.

Family provision claims must be brought within nine months of the death.

What factors determine adequate provision?

The court has unfettered discretion to consider any factor(s) it considers relevant to determine what would be an adequate provision in each case. The key factors generally taken into account are:

  • the financial position of the claimant;
  • the needs of the claimant for provision;
  • the past relationship between the claimant and the deceased;
  • the contributions, if any, made by the claimant during the deceased’s lifetime;
  • the size of the estate pool and the number of beneficiaries;
  • the financial circumstances of other potential claimants; and
  • whether the claimant was maintained by the deceased prior to death.

Costs associated with a claim for provision

If a claimant’s application for provision has good merit and the claimant is successful in their application, the court is likely to make an order for costs to be paid by the estate.

If, however, an application lacks merit, or if a beneficiary’s application for additional provision is unsuccessful, the court may make a costs order against such applicants.

How Gibbs Wright Litigation Lawyers can help

If you are involved in a family provision claim and need advice or representation, one of our experienced team of solicitors will be happy to help you.

Contact Gibbs Wright Litigation Lawyers today for a free and confidential initial consultation to explore your legal options and rights.

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