There’s no doubt that being left out of a Will, no matter how big or small the estate is, can result in high emotions.
Recently, Bob Hawke passed, and it is understood that he left a multimillion estate. Even Hawke’s estate is not immune to a family provision application – with reports suggesting his daughter who received around $750,000 is making an application for provision.
It is important to remember that a family provision application is based on an applicant being able to show that they have not received adequate provision from the Will for their ‘maintenance and support’. The application is about demonstrating a need – it is not an opportunity to rewrite the Will.
In Queensland, a family provision application can be made against an estate under Part 4 of the Succession Act 1981 (Qld).
In essence, an eligible person can make the application where the deceased’s Will does not provide them with adequate provision for their ‘maintenance and support’.
A person who is eligible to make an application for provision includes the deceased’s spouse, child, step-child or dependent.
It is important to remember that:
There is no hard and fast rule to a family provision application. However, when an application is made, the Court takes a two-step approach.
Firstly, the Court must consider whether there has in fact been inadequate provision made for the applicant according the reasonable expectations of the community. If the Court is of the view that inadequate provision has been made for the applicant, the Court, secondly, must consider what provision should be made for the applicant.
The Court has the power in these types of matters to exercise discretion. For this reason, no two cases are ever the same, and each case is assessed on its on facts.
As a general rule, when the Court is considering a case, it will take the following factors into account:
Making a family provision application is not a fleeting process, in fact it can be particularly invasive for an applicant who needs to disclose details of their personal life and financial circumstances in their application.
If you are considering making an application for provision, or you are a legal representative of an estate where there is a risk of an application being made against the estate, do not hesitate to contact us for advice on your position.