A spouse, child, or dependent may be aggrieved by the inadequate provision in the will of a deceased person.
Section 41 of the Succession Act 1981 (Qld) aims to protect eligible persons where their proper maintenance and support is inadequately, or not provided for in a will. It provides that a spouse, child, or dependent (Applicant) may apply to Court for orders that make adequate provision out of the deceased estate for the Applicant. The Court makes orders it thinks fit, taking into account the following:
- 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 dependent for the continuance of that maintenance and support;
- the circumstances of each particular case; and
- whether it is proper that some provision should be made for the dependent.
The Court considers the following:
- the Applicant’s financial position;
- the whole relationship between the Applicant and the deceased;
- the relationship between the deceased and other persons having a claim against the estate;
- the age, means, and capacities of persons having a claim against the estate; and
- whether or not a moral duty was owed by the deceased to the Applicant.
It should be borne in mind that the Court is not bound to rewrite a will. The Court recognises the right of a testator to decide how the testator’s estate should be distributed. That right is subordinated only when the Applicant demonstrates that provision for the Applicant in the will is inadequate.
A testator’s expression of reasons for making a distribution of their estate in a particular manner is to be taken into consideration, but not if the evidence in the particular circumstances does not support the testator’s reasoning for the distribution. Simply because a testator states reasons for distribution does not mean those reasons will be acted upon.
‘Adequate’ and ‘proper’ depend on needs and the ability and resources available to the Applicant to meet those needs, taking account of the applicant’s age, gender, and conditions of life generally. They must be balanced against the nature and extent of the estate, the demands upon the estate, and what the testator regarded as a preferable disposition.
The size of the estate is an important consideration, particularly if legal costs of the parties are deducted from the estate. Costs of a Family Provision application are ordinarily paid from the deceased’s estate, but the Court has discretion to refuse to make such an order or may order an unsuccessful party to pay those costs. Costs are influenced by the willingness of the parties to negotiate and the unique circumstances of each case. The Court, when deciding if the deceased’s estate should pay legal costs, considers if the deceased, or a potential beneficiary, has by their conduct caused litigation to occur, and if the circumstances of the case demonstrate a need to investigate matters such as the deceased’s testamentary capacity. However, if the will is challenged on the basis of fraud or undue influence and there were no reasonable grounds for bringing such a case, the unsuccessful party may have to bear their own costs.
An application to the Court should be filed within nine months of the death of the deceased, but a Court may direct otherwise.
Those who can bring a family provision application are:
- spouses, including de facto spouses;
- children, including step children; and
- dependents who are wholly or substantially maintained or supported by the deceased person and were also a parent of the deceased, parent of a child of the deceased, or a child under the age of 18 years.
Essentially, each application is dependent upon the unique circumstances of each individual case.
The usual parties to an application are the Applicant and the Defendant’s executor. Other parties to be usually joined are other beneficiaries. However, the circumstances of each case differ, and potential Applicants should obtain their own legal advice.