challenge a will family provision application estate litigation lawyers queensland

I recently had a meeting with Trevor Benson from InfocusMoney Management. Trevor asked me a question on behalf of a client of his about making a claim against an Estate of a recently deceased relative. It led to a discussion on the general principles applied by the Courts when a claim is made against a deceased estate in Queensland.

Lee Nevison, Barrister, recently published a paper that dealt with this issue. As to general principles with respect to the determination of family provision applications in Queensland, the following will be a guide:

  • A party must fall within the one of the categories of eligible applicants to have standing to pursue an application. These categories include:
  1. A spouse (including de-facto spouse) of the deceased; and
  2. Children (including step-children) of the deceased; and
  3. Dependants of the deceased.
  • Any application must be commenced within nine months of the date of death of a deceased, unless leave of the Court is granted outside that time for the application to be heard. Notice should be provided to the Executor of the Deceased Estate within 6 months from the date of death that a claim will be made;
  • Courts do not simply re-write Wills because a claim is made – there is definitely no guarantee that a claim will be successful;
  • There is no principle of paramountcy of entitlement for a spouse or for equality between siblings – again reinforcing the fact that there is no guarantee of success;
  • Claims in small estates will be discouraged. I have personally been involved in a case where I had to advise a client to settle a claim at an early stage, given my concern that the Estate did not have enough assets to warrant a claim, and there was a chance of costs being ordered against my client. I have previously posted a blog on this issue.
  • Courts will approach the matter by determining what a wise and just, as opposed to a fond and foolish Willmaker,would have done in all the circumstances: Bosch v. Perpetual Trustee Co Ltd [1938] AC 463;
  • What is “adequate” and “proper” will vary depending on the facts and circumstances of each individual case;
  • Proceedings will be determined on a two stage process involving a range of considerations. If a Court is satisfied that adequate provision has not been made, then a Court will exercise its discretion by determining, what, if any, provision should be made:  Singer v. Berghouse (1994) 181 CLR 201.

These principles highlight the importance of giving thorough consideration to a claim before one is made, given that there is no guarantee of a claim being successful. It also highlights the importance of getting properly qualified professional estate planning advice if there is any prospect of a claim being made against your estate. Please contact me if you have any questions at all on claiming against an estate or any estate litigation matters.

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