Family Provision Claims QLD: What You Need to Know

A Family Provision Claim in Queensland refers to a legal procedure where an individual challenges a will under Part IV of the Succession Act 1981 (Qld). This type of claim is typically made when a person believes they have not been adequately provided for in the deceased’s will. There are generally two scenarios where Family Provision Claims are made:

1. The claimant has been left out of the will entirely and seeks to be given something from the deceased’s estate.
2. The claimant is included in the will but believes they should receive more than what was allocated to them.

These claims are made to the Supreme Court of Queensland and involve a process of legally contesting the distribution of the deceased’s estate as set out in their will. The purpose of such a claim is to ensure fair and adequate provision for the maintenance, education, or advancement in the life of eligible persons who were dependent on the deceased​​.

What Factors Does the Court Consider in a Family Provision Claim?

In a Family Provision Claim in Queensland, the court considers a range of factors to determine whether the claimant has been adequately provided for in the deceased’s will. These factors include:

1. Financial Needs and Health of the Claimant: The court examines the current and future financial needs of the claimant, including any health issues that might affect their financial situation.
2. Size and Value of the Deceased’s Estate: The overall value of the estate and its ability to provide for the claimant’s needs are taken into account.
3. Contributions Made by the Claimant: Any contributions (financial or otherwise) that the claimant may have made to the estate or the welfare of the deceased are considered.
4. Relationship with the Deceased: The nature and duration of the relationship between the claimant and the deceased person are crucial factors.
5. Claimant’s Behaviour: The court may consider the conduct of the claimant, especially if there’s evidence of behaviour that could affect their entitlement, such as mistreatment of the deceased.
6. Support Provided by the Deceased: If the deceased had been providing financial support to the claimant, this will be taken into account.
7. Presence of Dependents: Whether the claimant has dependents who rely on them financially is also a significant factor.
8. Legitimacy of Other Claims: The court evaluates the validity and importance of any competing claims against the estate.
9. Claimant’s Other Financial Resources: The court looks at whether the claimant has a legal entitlement to support from other sources.

The court’s objective is to ensure a fair and comprehensive assessment of the claimant’s eligibility and the merit of the application based on these factors​. To make sure you undergo the right process for Family Provision Claim QLD, it’s always best to consult a family lawyer.

Who Can Make A Claim For Provision?

The following categories of individuals are eligible to claim provision from a deceased person’s estate under a Family Provision Application (FPA):

1. Spouse of the Deceased: This includes the husband or wife, de facto partner, registered partner, and even former spouses in certain circumstances.
2. Child of the Deceased: This category encompasses biological children, stepchildren, and legally adopted children of the deceased.
3. Dependant of the Deceased: A dependant is defined as a person who was wholly or substantially maintained or supported by the deceased at the time of their death. This can include:

• A parent of the deceased.
• The parent of a surviving child under the age of 18 years of the deceased.
• A person under the age of 18 years.

It’s important to note that being an eligible person does not automatically entitle someone to a share of the estate; they must also demonstrate that the deceased’s will did not make adequate provision for their proper maintenance and support. The court will consider various factors, such as the claimant’s financial need, the size of the estate, and the relationship with the deceased, to determine if a claim is justified.

What are the Costs Involved in a Family Provision Claims Case?

Determining the exact cost of a family provision claim case in Queensland can be difficult due to various factors at play. Below is an overview of the costs involved and some guiding principles.

Factors Influencing Costs

• The complexity of the case: Cases with larger estates, multiple claimants, or contested issues like mental capacity often involve more extensive evidence gathering, expert witnesses, and court appearances, leading to higher costs.
• Length of proceedings: Negotiations, mediation, and court hearings can significantly impact the duration and thus the fees.
• Lawyer/Solicitor fees: Fees vary depending on experience, firm size, and location.
• Other disbursements: This includes expenses like expert reports, court filing fees, photocopying, and travel.

Cost Principles

• Costs orders: Although not the default in family provision cases, the unsuccessful party may be ordered to pay some or all of the other party’s costs.
• Overall justice of the case: Courts prioritise achieving a fair outcome for all family members, so cost orders are often discretionary and consider factors like financial needs, conduct during proceedings, and the strength of each party’s case.
• Capping costs: Courts may in some cases limit costs at different stages of the proceedings to manage expenses and encourage settlements.

Potential Cost Range

While the cost varies as each case is unique, here is a rough estimate of what you might expect to pay:

• Simple cases: $10,000 – $20,000
• Medium complexity: $20,000 – $50,000
• Highly complex: $50,000+

Legal Assistance in a Family Provision Claim

A client approached Walker Pender when she felt unfairly treated in her parents’ will, receiving only the ancestral home while her brothers inherited the family businesses. Our family lawyer assessed her eligibility for a Family Provision Claim. We then meticulously gathered estate details, including asset valuations, to highlight the disparity in inheritance. Our team advised her on potential outcomes and filed a claim in the Supreme Court of Queensland, arguing inadequate provision. We focused on fair resolution, negotiating to recognise her rightful share and preserve family relationships, and guiding her through each legal step.

Curious About Family Provision Claims QLD?

Feeling overlooked in a will? Walker Pender is your ally in navigating Family Provision Claims in Queensland. Our dedicated legal team understands the emotional and financial complexities of estate disputes. We are committed to ensuring you receive a fair share of your family’s legacy. Don’t let uncertainty over your entitlements stress you out. Contact Walker Pender today for a consultation and let our expertise guide you to a just resolution. Your rightful inheritance deserves vigilant legal protection.