Even if a person makes a valid Will, if certain categories of people are not adequately provided for, there is a risks that they may bring a family provision application (FPA) against the estate.
In Queensland, section 41(1) of Succession Act 1981 (Qld) sets out the grounds for an FPA:
If a person dies without making adequate provision from their estate for the proper maintenance and support of their spouse, child or dependant, the court may order that provision be made as it sees fit.
Threshold questions
The Court must first determine the following points:
- The claimant falls within a category of an ‘eligible person’. Only eligible persons can make an FPA. This means:
- spouses, including de facto partners and parties to civil partnerships;
- children, including step and adopted children of the deceased; or
- and ‘dependants’, including any person who was being wholly or substantially maintained or supported by the deceased.
- The deceased person had a moral obligation to provide for the claimant; and
- The provision the claimant receives under the Will (or under the intestacy provisions, if the deceased did not leave a Will) is not adequate for their proper maintenance and support.
Provided the person making the claim satisfied the points above, the Court then needs to determine the amount of provision that constitutes ‘adequate provision’.
However, ‘adequate’ does not always mean ‘fair’, and there are several factors that the Court will look at in answering this question.
What is adequate provision?
Unlike some types of disputes, when it comes to family provision claims, there is no scale or formula for the Court to rely on when determining the amount of provision that constitutes ‘adequate provision’.
This is not based on fairness, equality or compensation.
It will depend on the circumstances of each particular case, and the following factors:
- the ability of the applicant to meet their own financial responsibilities;
- the amount which is necessary for their maintenance and survival;
- the size of the estate;
- any competing claims upon the estate (and against those of other beneficiaries);
- the standard of living of the applicant;
- the relationship between the applicant and the deceased;
- the manner in which the applicant conducted themselves during the deceased’s life; and
- the deceased’s wishes.
No two claims are the same, and it is not possible to adopt one-sit-fits all approach when trying to determine the amount that a Court might order.
The determination of what is adequate, is relative to the applicant’s ‘need’ for further or better provision, but also takes into account their own capacity to meet those needs.
But while the financial need of the applicant is a central factor in assessing an FPA, the fact an applicant such as an adult child is independently wealthy or is not experiencing financial hardship, does not necessarily mean the deceased should not have made adequate provision for them.
You also need to consider your chances of success against your potential legal costs and the legal costs that are inevitably going to be incurred by the estate (to either defend or negotiate your claim).
Time limits in making an FPA
When considering a claim for further provision from an estate, it is important to understand the time limits in place and act sooner rather than later as an unexplainable delay could mean the Court will refuse to hear your claim.
An applicant must give written notice to the executor of the estate of their intention to commence an FPA within 6 months from the date of death.
An applicant must then commence court proceedings and file their claim in relation to an FPA within 9 months of the date of the death (if a compromise is not already reached before then).
An FPA can be made notwithstanding that the executor has not obtained a grant of probate or grant of Letters of Administration.
An applicant should seek expert legal advice before notifying an executor of their intention to make an FPA.
The importance of getting legal advice
As can be seen, many factors are taken into account in determining whether provision from an estate is adequate, and Courts have a broad discretion to investigate all the circumstances of the case.
Therefore, when assessing your claim through negotiations with the estate’s executor when trying to reach a settlement agreement, all above factors must be considered.
It is vital to get legal advice whether you wish to make an FPA because you expected to be provided for, or better provided for, from a family member’s Will – or whether you are executor of a Will responding to the notice and lodgement of an FPA.
We can help a person who wishes to make an FPA by assessing the merits of their claim having regard to the above factors which are relevant to their particular matter.
Furthermore, if you are making a Will, or would like to update your existing Will, please feel free to contact us to discuss strategies you can take to reduce the chances of your estate becoming the subject of an FPA.
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