Under the Succession Act 1981 (Qld), certain eligible persons may bring a Family Provision Claim (FPC) if they have been left without adequate provision from a deceased person’s estate. These claims can be complex, requiring a careful assessment of eligibility, the estate’s value, and competing claims. Below, we explore key considerations for potential claimants and estate executors navigating these disputes.

Who Can Make a Family Provision Claim?

The Succession Act identifies specific categories of persons who may be eligible to make a claim, including:

1. Spouses (including de facto partners and registered civil partners)
2. Children (biological, stepchildren, and adopted children)
3. Dependants (any person who was wholly or substantially dependent on the deceased at the time of their death)

It is crucial to establish eligibility before commencing a claim, as courts have discretion to reject claims that do not meet statutory requirements.

What Must a Claimant Prove?

A claimant must demonstrate that:

1. They are an eligible person under the Act;
2. They have not received adequate provision from the deceased’s estate for their proper maintenance and support; and
3. The deceased had the capacity to provide for them in their will but failed to do so.

Courts consider various factors when determining whether adequate provision has been made, including:

1. The claimant’s financial circumstances
2. The size and nature of the estate
3. The relationship between the claimant and the deceased
4. Any contributions made by the claimant to the deceased’s estate or welfare
5. Any competing claims from other eligible persons

Time Limits for Bringing a Family Provision Claim

Strict time limits apply to these claims

1. The application must be notified within six months from the date of the deceased’s death.
2. The claim must be filed within nine months from the date of death.

Failure to adhere to these deadlines can result in a claim being dismissed, although courts have discretion to extend the time limit in exceptional circumstances.

Defending a Family Provision Claim

For executors and beneficiaries, defending a claim involves proving that the deceased’s will adequately provided for all eligible persons or that the claimant does not meet the necessary requirements. Potential defences include:

1. Demonstrating the claimant’s financial independence and lack of need
2. Showing that adequate provision has already been made during the deceased’s lifetime
3. Highlighting other beneficiaries’ stronger claims
4. Proving estrangement or a lack of relationship between the claimant and the deceased

Navigating Family Provision Claims can be legally and emotionally challenging. If you require assistance with making or defending a claim, Rose Litigation Lawyers has extensive experience in estate litigation and can guide you through the process to achieve a fair and commercially sensible outcome.

If you are facing issues relating to defending or making a claim under the Succession Act (QLD) regarding Family Provision Claims, contact one of our expert lawyers to discuss your options.

The content of this publication is intended to provide a summary and commentary only. It is not intended to be comprehensive nor does it constitute legal advice, and has been prepared based on applicable legislation and case authority at the date of publication. You should seek legal advice on specific circumstances before taking any action.