In Queensland, a will may be challenged by a small class of people seeking financial maintenance and support pursuant to Part 4 of the Succession Act 1981.
This is known as a Family Provision Application (‘FPA’).
The circumstances in which an FPA may be made include:
- an old will does not take into account changed circumstances of the deceased, such as additional children (or step-children);
- a child is excluded from the will, or receives less favourable treatment than their siblings;
- a parent leaves money to their new spouse to the exclusion of their children, or a step-parent favours the interests of their own children to the exclusion of their step-children; or
- even if a will leaves an estate equally between children, the needs of one child may be greater than the others.
Who may make an FPA?
The following individuals may make an FPA:
- spouse – husband/wife, de facto partner, civil partner or former spouse or civil partner;
- child – biological child, adopted child or step-child; and
- financial dependent – parent of the deceased, parent of a surviving child of the deceased or any child under the age of 18.
Step-children may only apply if their parent and step-parent had not divorced (if married) or separated (if de facto).
Time limits
A claimant has six months from the date of the deceased’s death to give notice of an FPA. An FPA must then be filed in court within nine months of the deceased’s death. Extensions of time are not guaranteed, and it is critical to file within time.
Prior to making an FPA, it is common for the parties to correspond on matters such as the size of the estate, and to have settlement discussions.
The process
An FPA is commenced by filing an application and affidavit in either the District or Supreme Court. The applicant’s affidavit must address a variety of matters including:
- any relevant family/relationship history;
- details of assets, liabilities and income;
- details of assets and liabilities of the estate; and
- an estimate of costs to a final hearing.
A draft order must also be prepared for the timely exchange of information and documents towards a mediation.
The executor must respond to the draft order and file affidavit addressing matters such as:
- estate assets and liabilities;
- estimate of the costs to a final hearing;
- response to the matters in the applicant’s affidavit; and
- details of other beneficiaries who have a competing claim
The parties will then attend a mediation before an independent mediator with their legal representatives. It is common for a successful claimant to receive a payment plus their legal costs which generally come out of the estate (ie. costs will be in addition to their maintenance payment).
It should be remembered that an executor has a positive duty to uphold the will, which is tempered somewhat by commercial considerations in modest estates.
Matters to be considered by the court
If the matter does not settle, the court will have to determine:
- whether the applicant has been left without adequate provision; and
- If so, determining what provision ought to be made.
In answering these questions, the court may take into account a variety of factors including:
- nett value of the estate;
- relationship between the applicant and the deceased;
- applicant’s financial circumstances and their age, sex, health and status in life;
- applicant’s contributions to the deceased’s estate;
- applicant’s character and whether they engaged in disentitling conduct;
- competing claims of other beneficiaries;
- evidence of the will-making intentions of the deceased; and
- any provision made for the applicant by the deceased in their lifetime.
The factors which may have the most sway are an applicant’s financial need and the strength of their ‘moral’ claim against the estate.
It should be noted that an unsuccessful claim will not necessarily result in an applicant having to pay the executor’s costs, but a costs order against a claimant with a weak case is a possible outcome.
Disentitling conduct
Estrangement between a parent and a child will not necessarily preclude the child from making a successful FPA. However it may be a relevant factor in relation to a claimant’s prospects of success.
Violence, dishonesty and other types of conduct by an applicant which are not in accordance with community standards may be a valid reason for total exclusion from a will.
Next steps
If you wish to challenge a will on the basis that you have not been provided with adequate financial provision, or you are an executor who has received notice of such a claim, you should act quickly. Our team at DBL Solicitors will be happy to help.
Ben Trost
Senior Litigation Solicitor
