When the Testator loses the Last Word: Consideration of Family Provision Applications in Queensland

When the Testator loses the Last Word: Consideration of Family Provision Applications in Queensland
Posted on 7 Jan 2021

Family provision applications are arguably the most common litigious matters dealt with by an executor of an estate. Unfortunately, no matter how well the testator’s wishes have been recorded in his/her testamentary documents, even where the applicant is a named beneficiary of the Will, a family provision application may still be filed. Subject to the applicant satisfying the eligibility requirements to bring the application, the estate may be exposed to ongoing legal costs defending the application.

In Queensland, the discretionary power of the courts to make orders in respect of family provision claims is found in Part 4 of the Succession Act 1981 (Qld) (Act).  That discretionary power will be applied after careful consideration of the following:

(a)        whether the application been made in time;

(b)        whether the applicant satisfies the eligibility requirements; and

(c)        whether the lack of any provision, or insufficient provision, warrants the exercise of the court’s discretion to intervene and grant further provision from the estate.


Time for making the application

Pursuant to s 41(8) of the Act, a family provision application must be made within 9 months of the death of the deceased.  The time limitation in respect of family provision applications is short because it is naturally in the interests of the family of the deceased for the property of the deceased’s estate to be distributed speedily, which will be delayed in the case of family provision applications. 

However, courts have discretion to order that a family provision application be heard out of time and will take into account all the circumstances of the application when determining whether this discretion ought be exercised including an adequate explanation for the delay; whether there would be any prejudice to the beneficiaries – ie, if the property of the estate of the deceased has already been distributed and the beneficiaries have already changed their position; conduct of the applicant and the strength of the applicant’s case.


Eligibility of the Applicant

Whether or not a disappointed beneficiary is eligible to bring a family provision application is determined by application of Sections 41(1) and 41(2) of the Act which expressly provides that family provision orders might be contemplated where adequate provision is not made from the estate of a decedent for the proper maintenance and support of the decedent’s spouse, child or dependant.

It is useful to look briefly at these categories as defined by the Act, as it is not always as simple as it may seem.

‘Spouse’ is defined in s 5AA of the Act to include:

(a)        husband or wife

(b)        de facto partners, as defined in s 32DA of the Acts Interpretation Act 1954 (Qld), which provides at sub (5)(a) that “the gender of the persons is not relevant”; and

(c)        parties to a civil partnership registered under the Civil Partnerships Act 2011 (Qld).

However, s 5AA of the Act provides that to be a spouse for the purposes of the Act, the relevant person:

(a)        must have been the deceased’s spouse at the time of their death;

(b)        in respect of de facto spouses, must have been living with the deceased as a couple for a continuous period of 2 years ending on the deceased’s death;

(c)        a dependent former husband or wife or civil partner of the deceased, providing they had not remarried nor entered into a civil partnership with another person before the deceased’s death and had an entitlement to receive maintenance from the deceased.


“Child” is defined in s 40 of the Act to include “any child, stepchild or adopted child of the deceased”. 

Section 40A of the Act defines matters concerning step-children.  It notably provides:

(a)        that the relationship of stepchild and step-parent ceases upon divorce (or termination of civil partnership or ending of de facto relationship) of the deceased and stepchild’s natural parent;

(b)        but qualifies that the relationship of stepchild and step-parent does not cease merely because the stepchild’s natural parent died before the deceased person or if the stepchild’s natural parent remarried (etc) after the death of the deceased.

There is no differentiation between a minor and adult children. Age is not relevant to eligibility other than as a factor impacting the financial need.


“Dependant” is defined in s 40 of the Act as being: 

any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death being—

(a)        a parent of that deceased person; or

(b)        the parent of a surviving child under the age of 18 years of that deceased person; or

(c)        a person under the age of 18 years.

However, s 41(1A), requires the court to be satisfied that it is proper for some provision to be made for the dependant, taking into consideration the need for continued maintenance or support of the defendant.


Whether the Discretion should be Exercised

In making a determination the Court will take into account the below considerations, which also serve as an example of the nature of the evidence which will need to be put before the Court:

(a)   The size of the estate:

(b)   The means and financial responsibilities of the applicant:

(c)   The relationship of the applicant to the deceased:

(d)   Services rendered by the applicant to the deceased, for example, those that contributed to the accumulation of the estate (consider for example an adult son who assisted in building the value of the father’s business, only to be disinherited prior to death).

(e)   Disentitling conduct (such as estrangement, adultery, alcoholism and desertion).


Protecting Your Interest

There are ways to reduce the risk of such application against the estate being made, or otherwise assist the Court in reaching a determination consistent with the testator’s wishes as to the provision that ought to be made to the applicant.

If you are an executor, or if you consider you may be eligible to make a claim against an estate for further provision, timely legal advice must be sought. In addition to the 9 month timeframe imposed by the legislation, executors and applicants must follow the Supreme Court Practice Direction No. 8 of 2001 and District Court Practice Direction No. 8 of 2001 which outlines the procedural matters to be followed when bringing a family provision application.

Our experienced estate litigation lawyers are here to assist. Contact any of our expert team members to discuss.

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