April 15, 2019

Wills and Estates

What is a family provision application?

The Succession Act 1981 (Qld) entitles eligible persons to make an application to the court seeking that adequate provision be made for their “proper maintenance and support” from the deceased person’s estate.  This is commonly called a family provision application (FPA).

who is AN Eligible person?

Only a spouse, child or dependant of a deceased person is eligible to bring an FPA.  

“Spouse” includes a husband or wife, de facto partner, a civil partner and dependent former husband or wife or civil partner. A deceased person may have multiple spouses - e.g. a de facto spouse and a married spouse.

“Child” includes natural children, stepchildren and adopted children.

“Dependant” means a person who was being wholly or substantially maintained or supported by the deceased at the time of his or her death and who is:

  • a parent of the deceased; or
  • the parent of a surviving child under the age of 18 years of that deceased person; or
  • a person under the age of 18 years.

the court’s 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 factors the court considers in determining FPAs which include the:

  • applicant’s financial position and needs now and into the future;
  • ability of the applicant to meet their financial obligations;
  • any physical, intellectual or mental disability of the applicant;
  • size of the estate;
  • any contributions made to the building up of the deceased’s estate or to the welfare of the deceased;
  • competing claims – i.e. financial position and circumstances of the beneficiaries;
  • standard of living of the applicant during the deceased’s lifetime;
  • relationship between the deceased and the applicant; and
  • wishes of the deceased.

USUAL STEPS IN FPAS.

Most FPAs settle at or before the compulsory mediation stage rather than proceeding to trial.

Below are the usual steps to be undertaken in attempting to resolve an FPA:

Step

Time

1.

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

Within 6 months of death

2.

The applicant must file their application in court and serve it together with their affidavit supporting that application.  When serving these documents they must also provide a draft directions order (DO) which proposes a timetable for the FPA. The affidavit is usually quite detailed and takes some time to prepare.

Within 9 months of death

3.

The executor either agrees on the timetable proposed, or negotiates other dates in the DO with the applicant.

14 days from service of the draft DO

5.

The executor serves copies of all court documents and the agreed DO (together with a specifically worded letter) to any person who may be affected by the FPA.

As agreed in the DO

6.

Any person served with these documents who chooses to be separately represented must file and serve a Notice of Address for Service. If they also intend to bring an FPA that must be stated in the Notice.

As agreed in the DO

7.

The executor files and serves their affidavits in reply.

As agreed in the DO

8.

The additional parties file and serve their affidavits.

As agreed in the DO

9.

All parties have another opportunity to file and serve any further affidavits.

As agreed in the DO

10.

A without prejudice meeting is held – usually by telephone between the lawyers. The purpose being to narrow the issues if possible and attempt to negotiate a settlement.

As agreed in the DO

11.

If not resolved, the FPA proceeds to mediation.

As agreed in the DO

12.

If not resolved at mediation (or subsequently) then the FPA will be set down for trial to be determined by a judge. The matter can still settle at any time up to and including the trial.

Trial date determined by court availability –

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