EVERYTHING YOU NEED TO KNOW ABOUT FAMILY PROVISION CLAIM QLD

There are various ways a person can contest a Will in Queensland. The most common way a person contests a Will in Queensland is by making a Family Provision Claim Qld (“FPA”) against the deceased’s Estate.

Our expert Estate lawyers have experience representing Applicants and Executors in FPA claims. If you are someone who has been left out of a Will or believe you have not been adequately provided for in a Will, we can help you. We also help Executors who are notified of an FPA claim. No matter who you are, our goal is to achieve the best outcome. We are a client-focused law firm and aim to achieve clients timely and cost-effective resolutions to their matters. 

Call us toll-free on 1800 529 000 today and speak to one of our expert Estate lawyers about your situation. We are here to help you.

What does contesting a Will in Queensland by a Family Provision Application (“FPA”) mean?

A Family Provision Application is an application made to the Supreme Court of Queensland under Part IV of the Succession Act 1981 (Qld) (“the Act”). There are generally two scenarios where persons make FPA claims:

1. The person has left out of the Will altogether, and they are seeking to be given something from the deceased’s Estate; or

2. The person is gifted something under the Will but they are seeking more.

How long do  I have to contest a Will in Queensland by FPA?

In Queensland, strict time limits exist to contest a Will by a Family Provision Application. If you are considering making an FPA, we strongly recommend getting advice from a lawyer as soon as possible.

There are two important time limits in Queensland:

1. Notifying the Executor of the Deceased’s Estate

If you want to contest a Will in Queensland by a Family Provision Application (” FPA”), you must notify the Executor. The notice is of your intention in making an FPA. This notice must be given to the Executor within six months of the deceased’s death and must be in writing.

2. Filing Your Application for an FPA In The Court

The second time limit is within nine months of the deceased’s death; you must file your application in the Supreme Court of Queensland or the District Court of Queensland. This is known as the limitation period.

What happens if you miss the nine-month time limitation?

If you do not file your application within nine months of the deceased’s death, you may make an application “out of time”. Such an application is at the discretion of the Court (the Court decides if they will let you file out of time), and there are no guarantees they will let you file out of time. Things relevant to such an application being granted will depend on the following:

• The duration of the delay.
• The reason for the delay by the Applicant.
• If the Estate has already been distributed.
• If there was any unconscionable conduct by the Applicant.

What things does a Court consider when someone is contesting a Will in Queensland by a Family Provision Application?

The Succession Act does not list things a Court must consider when determining an FPA claim. However, case law guides Courts on the factors relevant to determining an FPA. These include:

• Financial position of the Applicant. This includes the Applicant’s current needs and ongoing financial needs.
• If the Applicant receives financial support from anybody else.
• If the Applicant financially supports anyone.
• Any financial responsibility of the deceased for the Applicant.
• The Applicant’s health (are they in good health or have ongoing health problems).
• The Applicant’s age.
• The size (value) of the Estate.
• Any contributions by the Applicant towards the acquisition, conservation or improvement of the deceased’s Estate.
• Any contributions the Applicant made towards the welfare of the deceased.
• Competing claims of any beneficiaries under the Will or other eligible FPA Applicants – i.e. the financial position and personal circumstances of the other beneficiaries or FPA applicants.
• The relationship between the Applicant and the deceased, including the duration of the relationship.
• Any provision made for the Applicant from the deceased’s Estate.
• Any matter the Court considers relevant.

Who pays the Legal costs of a Family Provision Application in Queensland?

In Queensland, if you have a trial for a family provision application, the awarding of costs is at the discretion of the Court. This means it is up to the Court to decide who will bear the payment of the parties’ legal costs. If you successfully apply to the Court, you could expect some, if not all, of your legal costs to be paid by the other party.

If I am contesting a Will in Queensalnd by a Family Provision Application, will I have to go to trial?

Most FPA claims do not go to trial; many resolve at a compulsory mediation.