Family Provision Application

In Queensland, there are a number of ways in which you can dispute a Will. Such circumstances may include where the testator lacks capacity at the time the Will was made, where the testator’s Will has been overborne by undue influence, or where the testator has failed to make adequate provision for someone.

The latter is known as a Family Provision Application, and it is one of the more common ways to challenge a Will in Queensland. Essentially, it is an application made to the court to set aside or vary a Will, so that adequate provision may be made for an eligible person. An “eligible person” for the purposes of a Family Provision Application includes:

1. spouses (including de facto spouses);
2. children (including non-biological children, i.e., step-children); or
3. dependents.

For the purposes of a Family Provision Application, the Succession Act 1981 (Qld) (“the Act”) provides that a dependent is someone who is “wholly or substantially maintained or supported by the deceased person”. That person must also be a parent or a parent of a child of the deceased, or a child under the age of 18 years.

In order to successfully make a Family Provision Application, it is not enough to merely show that you are an “eligible person”. Pursuant to the Act, an applicant under a Family Provision Application must also establish that the testator has failed to make “adequate provision” for their “proper maintenance and support”.

Of course, what counts as “adequate provision” will vary on a case by case basis. In making a determination, the Court must make a subjective assessment of the facts. That is, the Court has to take into account the circumstances of the various beneficiaries and the size of the estate. The Court will also take into consideration the relationship between the Applicant and the deceased, as well as the relationship between the deceased and any other beneficiaries. For example, the Court may be less likely to find in favour of an Applicant who has been estranged from the deceased for a number of years. Similarly, the Court is not likely to find in favour of an Applicant who is financially stable or independent, in circumstances where another beneficiary would be reliant on provision from the estate.

If you believe you have been unfairly left out of a family member’s estate, or otherwise wish to challenge or dispute a will, you should contact one of our local, expert team for advice on 07 4963 2000 or via our online contact form.