Although the terms of a valid Will are binding, the law recognises certain situations where a person who is not a beneficiary may have a claim on the estate of the deceased.
What is Family Provision?
The rules apply if a deceased person has not made adequate provision in their Will for the proper maintenance and support of their spouse, child or dependant. If so, the court may order that payment be made out of their estate for each spouse, child or dependant not provided for. In relation to a dependant, it is necessary to have regard to whether the person was being maintained or supported by the deceased prior to their death. It is also relevant whether the person needs that support to continue.
If the claim for provision is not made within nine months of the death of the deceased, the right to claim may be lost.
Succession Act 1981 (Qld), s.41(8)
A young children can still make a claim for provision through a litigation guardian. The litigation guardian can also apply to the court for advice or directions . Even if paternity has yet to be established, an application can be made. In that case, the final decision will not take place until paternity is determined.
A family provision claim may also be necessary if technical issues with the Will prevent gifts from being made as intended.
Are payments guaranteed?
Family provision claims are within the court’s discretion. However, a spouse or child who has not otherwise benefitted will often have a good claim against a substantial estate. For dependants, the level of dependancy and relationship is important. The amount awarded will be based on the size of the estate and the circumstances of other beneficiaries.
Someone seeking provision from the estate may be refused if their conduct has been reprehensible or otherwise inappropriate. The court may also consider that it is not reasonable in the circumstances for any provision to be made.
If the claim is successful, any payment ordered will be paid out of the estate. It can be paid as a fixed lump sum or as a periodic payment. For successful claims, court costs may also be paid out of the estate. Duties payable on the estate will be calculated as if the court order was part of the Will itself.
How and When to Apply?
Strict deadlines apply to making a claim. You need to make a claim for provision within nine months of the death of the deceased. Otherwise the right to claim may be lost.
If you are making a family provision claim, it must be commenced by a claim in a court of competent jurisdiction in Queensland. Executors who receive such a claim should immediately seek legal advice.