Family Provision: was adequate provision made for you in the Will?
Your Will is your written statement as to how you wish your life's work to be distributed; most usually to family, friends and charities.
Unfortunately, sometimes not everyone is satisfied with the terms of a loved ones last Will. If, as an eligible person, you consider that no adequate provision or an inadequate provision has been made for you under a Will, you may have rights to dispute that Will. We can assist you in assessing your possible claim and your prospects of success. This will include an assessment of a variety of issues, including your eligibility to make a claim, your needs, your health, the size of the Estate, the Testator's moral obligations to you, other competing claims and more.
We can assist you in making such a claim or if you are acting as an Executor, in defending a claim.
Making a Claim for provision?
To make a claim you must fall within the definitions set out in the Succession Act. Section 41 of the Succession Act (Qld) 1981 entitles a deceased's spouse, child or dependant to make application for adequate provision to be made from the Estate for their proper maintenance and support.
The definition of child includes a stepchild and adopted child.
The definition of dependant includes any person that was being wholly or substantially maintained or supported by the deceased at the time of the deceased's death and can include a parent, a parent of a surviving child of the deceased under the age of 18 years, or a person under the age of 18 years.
The definition of spouse, if the deceased died after 1 April 2003, will include:
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a husband;
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a wife;
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a dependant former husband or wife (meaning a person who was divorced by or from the deceased and had not remarried before the deceased's death and was on the deceased's death receiving or entitled to receive maintenance from the deceased);
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a defacto partner (as defined in the Acts Interpretation Act 1954 (Qld) Section 32DA) who had lived together as a couple with the deceased on a genuine domestic basis and within the meaning of the Acts Interpretation Act for a continuous period of at least 2 years ending on the deceased's death.
There are time limits for disputing a Will and making a claim for provision out of the estate. Notice must be given to the Executor within six months from the deceased’s date of death and an application must be made to the Court within nine months from the date of death.
Applications of this nature are usually settled without the necessity of a Court hearing. The rules of the Court assist with the timely management of the matter which include a compulsory mediation.
The costs of the Applicant and the Executor of the Estate are normally paid out of the Estate but this is a discretionary matter for the Court and there are no guarantees. A careful assessment of the merits of the claim are required.
Let MMLaw advise you on whether you get a fair share.
