Have you been left out of a Will in NSW or Qld?

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What is a family provision claim?

A family provision claim is a claim made in the Supreme Court (of the applicable state) against an estate for not being properly provided for in the deceased’s will or under intestacy (dying with no will).

The applicable legislation is the Succession Act 1981 (QLD) and Succession Act 2006 (NSW). See links below:

http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/sa2006138/

http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/qld/consol_act/sa1981138/

There are three stages in this process:

  • Stage one – you need to be an “eligible person”
  • Stage two – you need to file within certain timeframes
  • Stage three – an assessment of the facts to determine whether the court will order family provision

STAGE ONE: ELIGIBLE PERSONS – Who has a right to bring a family provision claim?

NSW – section 57QLD – section 40
SPOUSE/DE FACTOthe current spouse of the deceased and former spouses of the deceased & current de facto of the deceased (including same sex couples)    a spouse (including a husband/wife, de facto partner, civil partner or dependent former husband or wife or civil partner)
CHILDa child of the deceased (including an adopted child but not including a stepchild).   For a stepchild to be eligible they must also demonstrate dependency on the deceased person – see discussion below)a child of the deceased person (including a stepchild or adopted child)
DEPENDENTSa person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceaseda dependent of the deceased person.   A “dependent” of the deceased person means:   a) a parent of the deceased person; or   b) the parent of a surviving child of the deceased person under the age of 18 years; or   c) a person under the age of 18 years; who was being wholly or substantially maintained or supported by the deceased person at the time of the deceased person’s death.
CLOSE PERSONAL RELATIONSHIPa person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.   * A “close personal relationship” is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, who are living together, one or each of whom provides the other with domestic support and personal care.

STAGE TWO: TIME LIMITS – Applications must be made within certain time periods

NSW – section 58QLD – section 44 (3) (a) and (b)
File claim in the Supreme Court of NSW within 12 months from the date of deathNotify the executor or administrator in writing an intention to apply within 6 months from date of death and file in the Supreme Court of Qld within 9 months from the date of death

Outside the time limits?

The court has discretion to hear an application out of time. The applicant must show the court reasons why the time limit should be extended. Considerations include whether there is an adequate explanation for delay, whether the beneficiaries are prejudiced and if the estate is still tact.

STAGE THREE: FACTS – Based on the situation, should provision be made?

NSW

Section 60 of the NSW Act sets out what the court needs to consider when determining an order for provision, including:

  • the relationship between the applicant and the deceased person
  • any obligations or responsibilities owed by the deceased person to the applicant
  • the value and location of the deceased person’s estate
  • the financial circumstances of the applicant, including their current and future financial needs
  • whether the applicant is financially supported by another person
  • whether the applicant has any physical, intellectual or mental disabilities
  • the applicant’s age
  • any contribution made by the applicant to increase the value of the estate
  • whether the deceased person has already provided for the applicant during their lifetime or from the estate
  • whether the deceased person provided maintenance, support or assistance to the applicant
  • whether any other person is responsible to support the applicant
  • the applicant’s character
  • any other claims on the estate
  • any other matter the court may consider as relevant.

QLD

In Qld, the legislation is not as specific as NSW.

Section 41 of the Qld Act says that the court must have regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.

The concepts of “adequate provision” and “proper maintenance” are based on the facts.

A decision in the Supreme Court of Queensland in Stewart v Stewart [2015] QSC 238 assessed the applicant’s financial position and needs now and into the future having regard to:

  • ability of the applicant to meet their financial obligations;
  • any physical, intellectual or mental disability of the applicant;
  • size of the estate;
  • any contributions made to the building up of the deceased’s estate or to the welfare of the deceased;
  • competing claims – i.e. financial position and circumstances of the beneficiaries;
  • standard of living of the applicant during the deceased’s lifetime;
  • relationship between the deceased and the applicant; and
  • wishes of the deceased.

Concluding remarks

In both states, the court is required to make a determination having regard to the current social norms. Looking at what a “wise and just” deceased person should have done to provide for his beneficiaries drives this area of litigation. The courts are apprehensive to make family provision orders because when they are made the terms of the will change. The courts are reluctant to overrule the deceased’s right to testamentary freedom (this is the deceased’s right to draft a will on the exact terms the deceased wanted).

We are a multi-jurisdictional law practice, practicing in NSW and Qld. If you think you have a claim or you are an executor or administrator who has been served with a family provision claim in Qld or NSW, get in touch with us today.  

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