Family Provision Claims in Queensland: Who can claim against an estate?

Family Provision Claims in Queensland: Who can claim against an estate?

In Queensland, when someone passes away, their estate is typically distributed according to the instructions in their will or, if no will exists, to next of kin under the rules of intestacy. However, there are cases where individuals believe they have not received a fair share of the deceased’s estate. In such cases, they may be entitled to make a family provision claim under the Succession Act 1981 (Qld).

A family provision claim allows eligible individuals to seek a larger portion of the deceased’s estate if they believe the will (or lack thereof) does not adequately provide for their needs. In this blog post, we’ll discuss who can make a family provision claim in Queensland and the process involved.

What is a Family Provision Claim?

A family provision claim is a legal action taken by an eligible person who believes the deceased person’s estate does not make adequate provision for their proper maintenance, education, or advancement in life. Even if the deceased made a valid will, a family provision claim can still be made if the claimant believes they have been unfairly left out or inadequately provided for.

The purpose of the claim is to ensure that the deceased’s estate is distributed justly, considering the needs of those who were dependent on the deceased or who have a moral entitlement to the estate.

Who can make a Family Provision Claim in Queensland?

In Queensland, not everyone has the right to make a family provision claim. Only specific individuals, known as “eligible persons,” are entitled to challenge a will or intestate estate distribution. The following individuals are commonly found eligible to make a family provision claim in Queensland:

1. Spouses: This includes both married, de facto partners and in some case former spouses. This is regardless of whether the relationship was long-term or short-term. The deceased’s spouse may claim if they believe the will did not provide for their proper maintenance.
2. Children: Biological, adopted, and stepchildren may be eligible to make a claim. This can include both adult and minor children.
3. Dependents: These are individuals who were wholly or substantially maintained by the deceased at death, and who also fall into one of these categories:
   1. a parent of the deceased;
   2. a parent of the deceased’s minor child (under 18); or
   3. a person under 18 years old (e.g., a grandchild, niece/nephew or foster child).

What does the court consider in a Family Provision Claim?

If you qualify as an eligible person, you can initiate a family provision claim. However, the court will not automatically give you a greater share of the estate. The judge will take consider several factors such as:

1. The size and nature of the estate: The court will consider the value of the estate and whether there are sufficient assets to make provision for the claimant without unfairly impacting other beneficiaries.
2. The deceased’s wishes: While the deceased’s will is a critical factor, it is not the only consideration. The court will assess whether the deceased’s wishes were reasonable and whether adequate provision has been made for eligible persons.
3. The claimant’s financial position: The court will look at the financial need of the claimant and their spouse. This includes their current income, assets, liabilities, and any other support they may be receiving from other sources.
4. The relationship between the claimant and the deceased: The nature of the relationship between the claimant and the deceased will be considered. Close family members or those who were dependent on the deceased may have a stronger claim than those who were not. However, just because a person is estranged from the deceased does not mean they cannot claim on an estate.
5. The claimant’s contributions to the estate: The court will examine if the claimant contributed to the deceased’s financial or general well-being, either through direct financial contributions or by providing care or support.
6. Any other relevant circumstances: The court may consider any other relevant factors, such as the conduct of the claimant or other beneficiaries, or any special needs of the claimant, like health issues or disabilities.

Time limit for Family Provision Claims

It is important to note that there is a time limit for filing a family provision claim in Queensland. Notice of Claim must be given within 6 months of the date of death and a claim must be filed with the court within nine months from the date of the deceased’s death. After this time, the claimant may lose their right to challenge the will or intestate estate, unless the court grants an extension, which is rare and only under special circumstances.

Conclusion

Family provision claims in Queensland offer an essential legal pathway for those who feel they have been unfairly excluded from a will or insufficiently provided for. Whether you’re a spouse, child, or another eligible person, understanding your rights and the steps involved in the process is crucial. Seeking professional advice early can make a significant difference in securing a fair outcome.

Article by Sean Powell

Sean leads the Estate Litigation Team at Robbins Watson Solicitors a law firm specialising in contested wills and estates. He has a Masters Degree in Applied Law, with a specialisation in Wills and Estates. 

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