If you believe that you were left out of a loved one’s Will, or that they did not make adequate provision for you then there are steps you can take to challenge it. The first step to would be to bring a ‘Family Provision Application’ (“FPA”), which is a challenge against the estate disputing the distribution of the contents of the Will. Usually an FPA is filed when due to certain circumstances a family member has decided not to leave anything to a person, or leaves them with too little.
Under Queensland law an FPA can be brought against the Estate by the deceased’s spouse (which includes de facto), the deceased’s children (including step-children and adopted children) and a limited number of other ‘dependants’.
If an FPA claim is brought against an Estate the court will consider the following factors:
- Whether the applicant is eligible to make a claim;
- Whether the applicant has been properly provided for in the Will; and, if not
- Whether further provision should be given to the applicant, and if so, how much.
In decided whether to make further provision for a person, and for how much, the court will consider the applicant themselves, their relationship to the deceased and the deceased’s family, and the state of the Estate. Each application is unique and the court will consider the circumstances detailed above before coming to any decision.
The basic principle an applicant must demonstrate to the Court is that ‘adequate provision’ has not been made to them in the deceased’s Will for their ‘proper maintenance and support’.
In weighing up whether ‘adequate provsion’ has been made the following circumstances will be considered:
- The applicant’s financial position;
- The size and nature of the deceased’s estate;
- The relationship between the applicant and the deceased;
- The relationship between the deceased and other persons who may have a claim against the estate; and
- The age, capacity and means of the applicant and all other beneficiaries.
In considering these circumstances the Court considers if the deceased had a ‘moral duty’ to make adequate provision for the applicant.
If you are considering making a Family Provision Application you should be aware that there are very strict time limits that must be complied with, otherwise your interests will not be protected. In most cases the cost of making an FPA is paid by the Estate of the deceased, however this is not an absolute rule and the court can order the applicant to pay their own costs, as well as those of the Estate.