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How to Bring A Family Provision Application for Inadequate Provision in a Will

Are you a spouse, child or dependant who feels you have not been made adequate provision for in a Last Will & Testament? Do you wish to contest this and pursue adequate provision? If so, then read on.

What is a Family Provision Application, how long do you have to file one, and how can you make use of it to contest what has been left to you in a Will? Butler McDermott Lawyers, one of the leading Wills and Estates Law Firms in Sunshine Coast has the answers.  

What is a Family Provision Application?

Under section 41 of the Succession Act 1981 (Qld) recognised in Australia under the Family Law Act 1975, the court has the power to order further provision from an estate if the Deceased’s Will fails to make adequate provision for their spouse, child and / or dependant.

Who can bring a Family Provision Application?

Eligible persons can have their Wills and Estates lawyer make an application to the court of law seeking that adequate provision be made for their proper maintenance and support. An eligible person is:

  • Spouse (including husband / wife, de facto partner and civil partner)
  • Child (including stepchildren and adopted children)
  • Dependent (someone who is maintained by the Deceased during their lifetime).

What are the time limitations for bringing a Family Provision Application?

Part 4 of the Succession Act 1981 (Qld) sets out the relevant timeframes for eligible claimants wishing to bring a Family Provision Application. Eligible claimants have six months from the date of the Deceased’s death to notify the Legal Personal Representatives of the estate about their intention to bring an application. An application must then be filed by lawyers and served within nine months from the Deceased’s date of death.

What considerations do the courts make in relation to bringing a Family Provision Application?

There are several considerations that a QLD court of law makes in relation to Family Provision Applications. Firstly, the law courts ascertain if adequate provision has been made for the Applicant’s proper maintenance and support. If adequate provision has not been made under Family Law, the courts will make several considerations, including:

  • The size of the estate.
  • The circumstances of the Applicant, namely, the Applicant’s age, health and financial status.
  • The strength of any competing claims.
  • Any disentitling conduct on behalf of the Applicant.
  • The relationship between the Deceased and the Applicant.

Please note that this list is not exhaustive, and the law courts may consider a number of other factors that are deemed to be relevant.

Can I bring a Family Provision Application after nine months?

If you do not file an application within nine months, you may still be able to bring a claim for further provision. You may file an application “out of time” after the nine-month timeframe has lapsed.

When making an “out of time” application, it is at the court’s discretion whether to extend the nine-month timeframe. There are several considerations that the law courts will make when determining if an application should be made out of time, such as:

  • The duration of the delay.
  • The reason for the delay.
  • The strength of the Applicant’s case.
  • If the Estate has already been distributed.
  • Any unconscionable conduct on behalf of the Applicant.

Butler McDermott’s Wills and Estates lawyers in Sunshine Coast have extensive experience in estate litigation matters, and other Family Law matters. Should you require the assistance of our Wills and Estates law firm, or would like more information about Family Provision Applications, please contact our experienced Wills & Estates lawyer.  

Authored by Jamie Hunt, a Butler McDermott Sunshine Coast Law Clerk

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