Have you provided for your family?

If a person dies and they have not made adequate provision in their will for the proper maintenance and support of their spouse, children or other dependants then the spouse, children or dependants can apply to the court to have the situation corrected.

The court may, at its discretion, order that such provision as it thinks fit be made from the estate for the benefit of the person or persons who have made the application.

The application which is made under these circumstances is known as a family provision application (FPA).

The court considers these applications in a two-stage process:
1. Whether or not adequate provision has been made for the applicant’s proper maintenance and support. The applicant must satisfy the court that adequate provision has not been made before the court can consider making any provision in favour of the applicant.  

2. If adequate provision has not been made then the court considers whether an order for provision will be made (by the court) and, if so, in what amount. The size of the estate, the provisions under the Will, the applicant’s financial position and the relationship between the applicant and the deceased are all considerations that are taken into account by the court in making a decision.

This is a complicated area of law and its implications need to be borne in mind when planning your estate. It should also be kept in mind that there is certain property to which an FPA may not apply.

Proper legal advice during your estate planning can help to minimise the risk of a family provision claim on your estate in the future.

Only a spouse, child or dependant of the deceased can make a family provision claim.  Each of these terms – spouse, child and dependant – is specifically defined in the legislation governing family provision applications.
The limitation period for the making of a family provision application is nine months in Queensland from the date of death; however, the court has discretion to extend this timeframe.

A family provision application can be made either before or after a grant of probate or letters of administration have been issued.

It can be a lengthy and expensive process but the majority of FPAs are settled by negotiated offers between the parties or through a mediation rather than through a trial.

If you think you should have received greater provision under a will or you are an executor of an estate that has been given notice of an intended FPA claim you should seek specialist legal advice.

Dr John de Groot is Special Counsel at de Groots Wills and Estate Lawyers. Visit degroots.com.au