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Family Provision Claim Estate Law Queensland

Dismissing a Family Provision Claim

I recently had the opportunity to review submissions made to a Court by an Executor wishing to have a Family Provision Claim dismissed. The basis of the application to dismiss the claim was on the grounds that the party lodging the claim had already been provided for adequately.

The background of the matter is as follows:

  1. The Deceased passed away aged 74 and left a Will dated in 2003;
  2. The Deceased left his Estate to his spouse, with the residue to his daughters (who were also the Executors);
  3. The spouse lodged a family provision claim (to dispute the Will), on 20 December 2012;
  4. The Estate was worth around $90,000.00;
  5. The spouse was in a better financial position than the deceased and as a result, the Deceased relied on the spouse for support;
  6. The spouse had a home and reasonably substantial assets;
  7. The spouse alleged that the Executors distributed the Estate early despite being on notice of the spouse’s intended family provision claim;
  8. The Executors alleged that they had no notice of the spouse’s claim;
  9. The Executors had distributed $60,000.00 of the Estate prior to receiving the spouse’s notice of a family provision claim;
  10. The remaining assets in the Estate were valued at around $30,000.00.

What should you consider when applying to dismiss a claim against an Estate?

Whilst every application contesting a Will, will depend on its own facts, the matter highlighted some of the important things to consider when an Executor is making an application like this. They include whether the Spouse’s entitlements would leave the spouse without adequate provision or proper maintenance considering:

  1. The spouse’s financial position;
  2. The value of the Estate; and
  3. The relationship between the deceased and the Spouse;

The matter also highlights the importance of Section 44 of the Succession Act 1981 (Qld) which protects an Executor or personal representative when a distribution of an Estate has been made, and no notice of a family provision claim has been received within the required time limits.

It is also important to consider who may have to pay the costs for the parties when making an application to dismiss a family provision claim.

If you are an Executor of a Will that is being disputed and would like to consider having a court dismiss a claim against an estate that has no merits, or if you are considering contesting a Will, please do not hesitate to contact me.

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Written by—

Chloe Kopilovic

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