Family Provision Applications in Queensland: Understanding Your Rights and Risks
Family provision applications are a significant part of estate disputes in Queensland, often arising when individuals believe they have been unfairly left out of a will or not adequately provided for. These disputes can be emotionally charged and legally complex, making it essential to understand the process, eligibility criteria, and potential outcomes under the Succession Act 1981 (Qld).
What is a Family Provision Application?
A family provision application (commonly referred to as an FPA) allows eligible individuals to seek additional provision from a deceased person’s estate when they believe the will (or intestacy laws if there is no will) does not provide for their proper maintenance and support. It is important to note that family provision applications do not challenge the validity of the will itself—this process accepts that the will is legally valid but questions whether the distribution is fair and adequate.
Who Can Make a Family Provision Application?
Under Queensland law, the following categories of individuals have an unconditional right to contest a will through a family provision application:
Spouses: This includes married spouses, de facto partners, and civil partners. A de facto partner must have lived with the deceased on a genuine domestic basis for at least two years prior to death.
Children: This includes biological and adopted children, as well as stepchildren in some circumstances.
Dependants: Individuals who were financially dependent on the deceased and living in the same household at the time of death, such as a relative with a disability or a family member receiving long-term care.
Many people are surprised by the breadth of these categories, especially when stepchildren or long-term de facto partners make claims. These situations can lead to complex legal disputes, particularly when the deceased had a blended family or had intended to exclude certain individuals from their estate.
Time Limits for Family Provision Applications
Strict time limits apply to family provision applications in Queensland. A person intending to make a claim must notify the executor within six months of the date of death, and the formal application must be filed in the Supreme Court within nine months of the date of death. Missing these deadlines can result in losing the right to contest the will.
Factors Considered by the Court
The court considers several factors when determining whether adequate provision has been made for an applicant, including:
The nature and quality of the relationship between the applicant and the deceased
The financial position, needs, and resources of the applicant
The size and nature of the estate
Any moral obligations the deceased had towards the applicant
The presence of other competing claims from beneficiaries
Whether the applicant has already received adequate provision in other ways
These considerations are assessed at the time of death, not when the will was written—meaning that an outdated will can significantly impact the court’s view.
Can Someone Agree Not to Contest a Will?
In Queensland, it is not legally possible for a person to enter into an agreement not to contest a will. Any such agreement would be unenforceable. This means that even if a spouse or child promises not to make a claim, they still retain their legal right to contest the estate under the Succession Act.
How to Minimise the Risk of a Family Provision Application
While it is impossible to completely eliminate the risk of a family provision claim (unless you leave everything equally to children or to a spouse), there are ways to reduce the likelihood of a successful challenge. These include:
Seeking legal advice when preparing your will, particularly if you plan to make unequal distributions
Including a detailed statutory declaration or letter of wishes explaining your decisions
Considering alternate strategies such as testamentary trusts or other estate planning tools
Reviewing and updating your will regularly, especially when your personal circumstances or family dynamics change
Blended families, estranged relationships, and financial dependencies can significantly increase the risk of a family provision application. Tailored legal advice is essential to ensure your estate plan reflects your wishes and minimises the potential for disputes.
Final Thoughts
Family provision applications are a common feature of Queensland estate law, and understanding the process is crucial whether you are an executor, a beneficiary, or a potential applicant. If you are concerned about a will you have made or received, or if you are considering making a claim, seek legal advice promptly to understand your rights, obligations, and options.
For assistance with family provision applications, wills, and estate planning, contact Vicca Law today. You can book a free consultation at www.viccalaw.com.au or email Lidia at lidia@viccalaw.com.au. We’re here to help you safeguard your legacy and navigate the complexities of estate law with clarity and confidence.