The death of a loved one is obviously an emotional, grief-stricken time, however, it can be made even more trying if you end up in a dispute about their Will or their estate.
In Queensland, there are a number of options available if you are unhappy or concerned about a person’s Will or their estate. The most common options include:
- Making a claim if you feel that you have not been adequately provided for in the Will (known as a ‘family provision application’).
- Challenging the validity of the Will – this may be on the basis that the person who made the Will did not have capacity at the time the Will was made or was subject to undue influence by others.
- Informal documents – asking the Court to recognise a document as a Will which does not comply with the formal requirements of a Will.
- Interpretation of the Will – seeking clarification of the meaning of the terms of the Will or the effect of a particular clause in the Will.
- Rectification of the Will – if there is a mistake in the wording of the Will or if the Will does not reflect the intentions of the person who made the Will.
This article briefly discusses the main aspects of making a family provision application.
Who can make a family provision application?
Only a deceased person’s spouse, child or dependant are eligible to make a family provision application.
A deceased person’s spouse includes their husband, wife or de facto partner. In some circumstances it may include a dependant former husband or wife.
A deceased person’s child includes a biological child, an unborn child, a stepchild or an adopted child.
A dependant includes a deceased person’s parent or any person under 18 years who was “wholly or substantially maintained or supported” by the deceased at the time of their death (this could include their grandchild, step-grandchild, niece, nephew, or even a foster child).
Important time limits
To make a family provision application, you must:
- Give written notice to the Executor named in the Will of your intention to make a family provision application within six (6) months from the date of death; and
- File your family provision application in Court and serve it on the Executor within nine (9) months from the date of death.
It is possible to commence an Application after this time. However, you must obtain the permission of the Court to do so.
What is considered when assessing the application?
When the Court considers a family provision application it will take into account a wide range of factors, including:
- the size and nature of the deceased’s estate;
- the applicant’s financial position;
- the needs of the applicant having regard to their health and age;
- the nature of the relationship between the deceased and the applicant;
- the strength of any competing claims by other beneficiaries or applicants to the deceased’s estate;
- contributions made by the applicant or others to the deceased’s estate.
For more detailed information on family provision applications download our Guide: “Have you been left out of a Will?”
If you are unhappy or concerned about a person’s Will, contact Delaney & Delaney today. Our integrity and commitment to excellence is demonstrated by the fact we’ve been around since 1915 and have decades of experience in issues relating to wills and estates. Contact us today on (07) 3236 2604 or admin@delaneyanddelaney.com.au
