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There are many reasons why someone who expected to be provided for in a deceased person’s will might be left out.
Perhaps there was a falling out before the will-maker passed away. Perhaps they just made a hard but necessary decision on who to include and who to leave out based on their property and assets.
Whatever the reason, if you are a person in the position where you expected to be provided for in a will but discover you were not included, you still have an option.
In Queensland, you can make a Family Provision Application (FPA) under the Succession Act 1981. Provided you meet the criteria of an ‘eligible person’ you are able to make this application and claim that you have financial ‘need’ and were not adequately provided for in the document.
In FPAs, the onus is on the applicant to show that the provisions stated in the will are inadequate.
Experienced wills and estates professionals such as South Geldard Lawyers can help guide you through an FPA, demystifying the process for you.
Qualification to make an FPA
To be considered eligible to make an FPA, you must be a spouse, child or a dependant of the deceased person.
Within these categories, a spouse includes a husband or wife, a de facto partner, a dependant former husband or wife, or a civil partner.
‘Child’ includes natural children of the deceased as well as stepchildren and adopted children.
‘Dependant’ includes any person who was wholly or substantially maintained or supported by the deceased at the time of his or her death and who is:
- A parent of the deceased; or
- the parent of a surviving child under the age of 18 years of that deceased person; or
- a person under the age of 18 years.
What is taken into account when an FPA is assessed?
While a person left out of a will may feel a strong sense of grievance and injustice, such factors are irrelevant to the court’s assessment of an FPA, which is based on objective, well-established principles.
A two-limbed test is employed, the first part of which is to consider whether adequate and proper provision was or wasn’t made for the applicant in the deceased’s will. The second part of the test is for the court to assess the applicant’s need of provision from the will.
Some of the factors considered in making these assessments include:
- the net value of the estate (after debts, taxation, funeral and other expenses have been deducted);
- the financial position of the applicant;
- the age, sex and health of the applicant;
- the nature of the relationship between the applicant and the deceased (closeness and quality, for e.g.);
- whether the applicant contributed to the estate distributed via the will, or to the welfare of the will-maker during his or her lifetime;
- the competing claims of any other beneficiaries, including their financial position and circumstances;
- whether the applicant has independent means due to any gift, transfer or other provision made by the deceased during their life, or from any other source;
- the character of the applicant and/or any disentitling conduct on their behalf (such as violence or financial abuse towards the deceased).
What does ‘need of provision’ mean?
The concept of an applicant’s ‘need’ is relative in relation to the size of the estate, as a number of court cases dealing with FPAs have demonstrated. In essence, this means that the larger the estate, the wider the interpretation of need will be.
In Colebatch v Colebatch, for example, the applicant was a neurosurgeon on a high income and with $3.1 million in other assets, who was left a gift of $1000 by his deceased father from an estate worth $1.2 million.
The application argued he was inadequately provided for in the will and sought additional provision in order to help with his mortgage and pay for repairs and renovations to his house. The court increased his provision under the will to $300,000, despite recognising his independent wealth.
In the case of larger estates, the court may consider need as encompassing more than financial provision. An FPA may also be successful if the applicant argues for provision on the basis of contingencies, such as supplementing the applicant’s superannuation, hedging against future ill-health, compensating for taxation and inflation on the applicant’s distribution from the will, and providing an investment fund to extend the applicant’s income based on life expectancy.
Are there time limits on making an FPA?
Written notice of a person’s intention to make an FPA should be given to the deceased’s personal representative (the executor or administrator of the estate) within six months of their death to ensure a premature distribution of the estate does not defeat the claim.
An applicant must then commence the legal action within nine months of the death, including a detailed affidavit supporting their application.
Later applications can be made but only if the court grants an extension based on the particular circumstances of the case.
Consult a wills and estates lawyer
If you’re unsure whether you’re eligible to make an FPA or need guidance on the best way to present your case for adequate provision, seek advice from South Geldard Lawyers.
We are experienced in wills and estates and have helped many clients make a claim for provision from a deceased’s will when they have either been left out or inadequately provided for.
While most FPAs will be resolved before or during the compulsory mediation stage to avoid court attendance, we will also advocate for you if no agreement can be reached.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.
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