April 15, 2019

Wills and Estates

What is a family provision application?

The Succession Act 2006 (Act) entitles eligible persons to make an application to the court seeking that adequate provision be made for their “proper maintenance, education or advancement in life” from the deceased person’s estate. This is commonly called a family provision application (FPA).

who is an eligible person?

The following persons are eligible persons[1] to make an FPA:

  • Spouse of the deceased person.
  • A person with whom the deceased person was living in a de facto relationship (including same sex relationships).
  • A person with whom the deceased person was in a registered relationship.
  • Former spouse of the deceased.
  • Child including adopted children.
  • Dependant who:
    • was at any particular time wholly or partially dependent on the deceased person; and
    • is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member.
  • A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

A parent, step-child or former de-facto partner are not specifically listed but may be eligible as a dependant or a person in a close personal relationship at the time of death.

the courts’ approach.

There are clearly defined principles upon which the court must act. There is no power to rewrite the will upon principles of fairness or justice.

Firstly, the court decides whether the gift (if any) to the applicant is adequate.

Secondly, if the court finds the gift (if any) was not adequate, then it has a discretion to make provision (usually a sum of money) for the applicant as it thinks fit.

There are a number of matters that the court considers in determining FPAs which include[2]:

  • The relationship between the applicant and the deceased;
  • Any obligations or responsibilities owed by the deceased to the applicant and any beneficiary;
  • The size of the estate;
  • The financial needs, both present and future of the applicant and any beneficiary;
  • If the applicant is cohabitating with another person – the financial circumstances of the person;
  • Any physical, intellectual or mental disability of the applicant or any beneficiary;
  • The age of the applicant when the application is considered;
  • Any contributions made to the building up of the deceased’s estate or to the welfare of the deceased;
  • Any gift made for the applicant by the deceased person, either during the deceased’s lifetime or from the deceased person’s estate;
  • The wishes of the deceased;
  • Whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death;
  • Whether any other person is liable to support the applicant;
  • The character and conduct of the applicant before and after the date of death of the deceased person;
  • The conduct of any other person before and after the date of death of the deceased person;
  • Any relevant Aboriginal or Torres Strait Islander customary law; and
  • Any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

Where an application is made by a person who is not a spouse, de facto partner or child of the deceased, in determining whether provision should be made, the court must be satisfied that there are factors which warrant the making of the application[3]. In Re Fulop deceased (1987) 8 NSWLR the factors were said to be facts which would give a person the status of someone the deceased would generally have regard to when considering who they should provide for upon their death.

notional estates.

In certain circumstances, the Court may order that provision be made out of the notional estate of the deceased person[4]. This means that the court can order that assets that would not ordinarily form part of the deceased’s estate on death (e.g. assets gifted or transferred by the deceased to another person or entity prior to death to attempt to avoid an FPA, superannuation, property owned as joint tenants between the deceased and another person), be considered as an asset of the estate for the purposes of an FPA.

USUAL STEPS IN FPAs.

Step
Time

1.

The plaintiff must give notice of their intention to bring an FPA.

Within 6 months of death

2.

The plaintiff must commence proceedings by way of summons in the Court.

Within 12 months of death

3.

The plaintiff must file and serve the following documents with the summons; affidavit of the plaintiff, notice of eligible person and an affidavit setting out the plaintiff’s costs and disbursements.

Within 12 months of death

4.

First directions hearing.  

Allocated by the court at the time of filing and no later than the first Friday after 28 days of the date of its filing.

5.

The executor or administrator must service notice of the plaintiff’s FPA on the following persons and inform them that they are entitled make an FPA out of the estate:

(a) the surviving spouse (if any) of the deceased person;

(b) every child of the deceased person;

(c) any beneficiary not mention in paragraph (a) or (b) above;

(d) any person mentioned by the plaintiff in his or her notice served with the summons; and

(e) any other person who, in his or her opinion, is or may be an eligible person.

As ordered by the court.

6.

The executor or administrator must file an administrator’s affidavit, affidavit of service, one affidavit in reply to the plaintiff’s affidavit, an affidavit of the beneficiaries and an affidavit setting out the administrator’s costs and disbursements. 

As ordered by the court at the first direction hearing, but no later than 7 days before court appointed mediation or, if the matter is referred to private mediation, at the directions hearing following mediation.

7.

The executor or administrator’s legal representatives must advise the plaintiff’s representatives of any beneficiary who wishes to attend mediation.

No later than 7 working days prior to mediation.

8.

The matter proceeds to mediation before a court appointed mediator or private mediator.

If the matter settles at a court annexed mediation, the registrar/mediator will make orders and vacate the second directions hearing. If the settlement requires the approval of the court, the court will make necessary orders to approve the settlement at the second directions hearing.

If the matter settles before a private mediator, the court will make necessary orders to approve the settlement at the second directions hearing.

As ordered by the court. Usually within 3 to 4 months of the first directions hearing.

9.

Second directions hearing.

As ordered by the court.

10.

If the matter does not settle at or before mediation, a timetable will be made for the preparation of the matter for trial. The timetable is to include provision for filing and service of a costs affidavit and any updating affidavit of any party or beneficiary.

As ordered by the court at the second directions hearing.

11.

The matter will be set down for trial. Directions will also be given for the filing and service of a list of the affidavits of the respective parties, an agreed chronology, a joint statement of assets and liabilities and a short outline of submissions.

As ordered by the court at the second directions hearing or a further directions hearing.

12.

Trial

As ordered by the court.

For more information, please contact the McInnes Wilson Lawyers Wills and Estates team on (07) 3231 0600.

 

[1] Succession Act 2006 s 57

[2] Succession Act 2006 s 60

[3] Succession Act 2006 s59(1)(b)

[4] Succession Act 2006 s 63(5).