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.
What is a family provision application?
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’.
Who can make an application for provision from a Will?
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:
- A deceased’s spouse can mean their husband or wife, or their de facto partner. Therefore, if two people have been residing together on genuine domestic basis for a minimum period of 2 years ending on the deceased’s death, he or she will be considered the deceased’s spouse.
- A step-child of the deceased includes the children of a spouse, but also any children of a previously deceased spouse or de facto partner of the deceased. For example, if Jane is married to John, and John has children from a previous relationship, and John passes whilst he is married to Jane, John’s children will remain Jane’s step-children. In the event of Jane’s death, even if that occurs happens 20 years after John’s death, John’s children will be eligible to make an application against Jane’s estate.
- A dependent of the deceased includes a dependent former husband or wife or civil partner. This means that if the deceased was divorced from their spouse, and they were entitled at the deceased’s death to receive maintenance from the deceased and that person has not re-partnered, it is possible they will be considered a dependent former husband or wife or civil partner and will be eligible to make an application for provision.
How does a Court consider a family provision application?
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:
- 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;
- 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.
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.
What should you do next?
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.
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