What is a Family Provision Application?
In Queensland, Part 4 of the Succession Act 1981 makes certain persons eligible to make a family provision application (FPA), to seek adequate provision from a deceased person’s estate.
These applications may be brought both where a Will exists and where the deceased died intestate (without a Will).
Eligible Persons
In Queensland, only particular persons can bring an FPA, these include:
- “Spouse” – includes a husband or wife or de facto partner.
- “Child” – includes biological/natural children, step-children and adopted children.
- “Dependant” – means a person who was being wholly or substantially maintained or supported by the deceased at the time the deceased’s death and who is either:
- a parent of the deceased; or
- a parent of a surviving child (under 18 years) of the deceased; or
- a person under 18 years.
Relevant Factors in an FPA
A Court will take into account a range of factors in deciding FPA matters and assessing the ‘need’ of an applicant, including:
- value and composition of the estate
- applicant’s financial circumstances (now and into the future)
- applicant’s ability to meet their financial liabilities
- applicant’s contributions (if any) to the building up of the deceased’s estate
- applicant’s standard of living during the deceased’s life
- applicant’s relationship with the deceased (or any estrangement)
- any other form of disentitling conduct
- wishes of the deceased
- competing claims (i.e. circumstances of other beneficiaries)
FPA Process
In respect of an eligible applicant, a Court will consider whether any provision made for the applicant is adequate. If inadequate, a Court then has a discretion to order provision (usually money) for the applicant as it thinks fit.
In practice, while ultimately a Court will determine the success of an application (if necessary), most FPA matters settle at or before the compulsory mediation (as a result of certain ‘without prejudice’ discussions/negotiations).
Sometimes it is also possible to participate in a ‘collaborative’ dispute resolution process (instead of the traditional ‘adversarial’ approach).
Timeframes
It is important that eligible persons do not unnecessarily delay in making an application (otherwise they risk losing their rights).
|
Step 1 |
Applicant gives notice of intention to make an FPA (notice to the executor
or administrator of the estate) |
6 months from date of death |
|
Step 2 |
Applicant files an originating application (FPA) in the Court together
with affidavits supporting the application and a draft directions order
(which sets out a timetable for the rest of the FPA) and serves the executor
or administrator of the estate. |
9 months from date of death |
*The Court has the power to extend these timeframes, but will do so usually only in limited circumstances.
Happy Monday everyone!
Cheers,
Josh Fox
Foxlaw