A ‘family provision application (FPA)’ is an application to the Court made by certain eligible person/s who have not been adequately provided for in a Will.
In Queensland, the majority of FPAs settle at a mediation, or shortly thereafter, rather than proceeding to a trial.
If considered eligible to bring an FPA against an estate, below is a list of the usual steps which are required to be undertaken:
1. Notice of Intention to apply
Within 6 months from the date of death of the deceased, notice of your intention to make an FPA against the estate must be given to the executor of the estate or their solicitors.
If you do not give notice of your intention in writing within 6 months from the date of death, the executor is then entitled to distribute the estate assets, without having regard to your claim.
If you wish to make a claim after this period, you are only able to make a claim against the assets of the estate that have not yet been distributed.
2. File application and serve on other parties
Within 9 months of the date of death of the deceased, you must do the following:
- file your Originating Application in the court, along with your supporting affidavit; and
- serve the Originating Application, along with your supporting affidavit and a draft Directions Order which you propose, on the executor or their solicitors.
The draft Directions Order is essentially a timetable for the matter the parties must comply with.
3. Finalise and file the Directions Order
Within 14 days of being served with the above documents, the executor or their solicitors must respond to your proposed Directions Order by either agreeing to it or suggesting an amended timetable.
After the Directions Order has been agreed and signed by both the executor’s solicitors and your solicitors, it is then filed with the Court.
4. Serve copies of application and supporting affidavit
The Directions Order will confirm the date when the executor is to serve copies of your application and supporting affidavit on any person who is entitled to bring an FPA against the estate and any beneficiaries of the estate, who will be affected by the FPA.
5. File and serve Notice of Address of Service
Any person who has been served in Step 4 above, must then make a decision if they want to join the proceedings and be separately represented by other solicitors. If they do, they must file and serve a Notice of Address of Service, which must also detail whether they intend to bring an FPA against the estate. The time for doing this will be provided in the Directions Order.
Anyone who has filed a Notice of Address for service, will also need to file and serve their supporting affidavits by the date stated in the Directions Order.
6. Executor to file and serve affidavit
In accordance with the Directions Order, the executor will then be required to file and serve an affidavit detailing the assets and liabilities of the estate and respond to your affidavit and any other affidavits filed by parties who have joined the proceedings.
The Directions Order will also provide a date for any of the parties to the proceedings to file and serve any further affidavits.
7. Without prejudice discussions
The parties and their respective solicitors can then participate in a “without prejudice” discussion or meeting about the matter in an attempt to put forward offers and come to a resolution.
However, this stage can be skipped if all parties agree to proceed straight to a mediation.
8. Mediation
Mediation is the next step and is mandatory in FPAs in the event the matter is not resolved.
A mediator is an independent party and will go between the parties and their legal representatives and try to get them to agree to a resolution of the matter. If the parties come to an agreement, they will sign a Deed of Settlement at the Mediation.
9. Final Orders
If an agreement is reached at Mediation, an Application for Final Orders will then be made to the Court to approve the settlement.
10. Trial (last resort)
If the Application is not resolved at the mediation stage the matter will then be prepared for a trial and a trial date will be set.
Although FPAs can be settled at any stage in the process, it is important for anyone who has begun, or intending to begin this process, to seek legal advice.
If you are considering making a claim against an estate, or are an executor who has been served notice of a Family Provision Application, please feel free to contact us and we can guide you through the above steps.
The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.
