When a person makes a Will they often believe it will go unchallenged and that their assets will be left to whomever they choose. This is partly but not completely true. A person drafting a Will must keep in mind that in some circumstances – where, for example, the testator excludes a spouse from their Will, or leaves everything to one child instead of dividing their belongings amongst all children, or decides to leave everything to charity – the Court can intervene on behalf of the excluded person.
Family members who have been excluded from a Will can bring what is known as a Family Provision Application for their proper maintenance and support out of the estate of the deceased person. Family Provision Applications are the most common “challenges” to a Will.
Bringing an Application Part 4 of the Succession Act 1981 (Qld) (“the Act”) provides that where a person dies and adequate provision is not made for the deceased’s spouse, child or dependant from the estate, the Court may, in its discretion, order that such a provision be made on the application of that person.
Under Part 4 of the Act spouses (including de facto spouses), the deceased’s children (including step-children) and the deceased’s “dependants” are all entitled to bring an Application to the Court.
The term “dependant”, which is used in the Act, is defined quite broadly. It includes a person who is “wholly or substantially maintained or supported by the deceased person” and who is also a parent of the deceased, parent of the deceased’s child, or a child under the age of 18 years. When we take this into account, the class of people who can make a Family Provision Application not only includes husbands, wives, children and step-children of the deceased, but can extend to the parents and former spouses of the deceased as well.
An Application for family provision can either be commenced in the District Court or the Supreme Court, depending on the size of the estate. The monetary limit for claims heard in the District Court is $250,000. If the estate is larger than this, the Application must be brought in the Supreme Court.
The Legal Test
The Court determines Family Provision Applications by applying a two-stage test, outlined section 41 of the Act. The first requires the applicant to show that adequate provision has not been made out of the estate for his or her proper maintenance and support. The second requires the Court to consider whether any order should be made, and if so, what amount should be awarded to the applicant. The Court will consider various factors to determine this second issue, which may include:-
1. The size of the estate;
2. How the distribution was effected under the Will;
3. The applicant’s financial position;
4. The relationship between the applicant and the deceased;
5. The needs and claims of the applicant;
6. The character or conduct of the applicant.
In relation to this last point, a Court can refuse to make an order, or reduce an amount under the order, if the applicant’s character is disentitling in the Court’s opinion.
Remember:orders for family provision are based on the Court’s discretion, so the applicant’s prior conduct will be relevant.
Recent Rulings
Today the Court has taken a more interventionist approach into estate matters. Compared to the past, judges seem more inclined to make an order for an applicant’s provision and maintenance out of the estate,
although these orders may vary.
For example in the case of Currie v Gault the deceased’s step son, Andrew Currie, made an Application for a provision out of Mrs. Currie’s $3 Million Estate.
Andrew had been left out of the Mrs. Currie’s Will entirely. The Court described Andrew Currie as living in a comfortable position, earning around $1,100 per week as a security officer. His combined earnings with his partner totalled around $2,000 gross per week.
Andrew Currie was successful in his Application and was awarded $900,000 from the estate.
Contrast this decision with the case of Manly -v- The Public Trustee of Queensland & Anor. In that case Mrs. Manley, the deceased’s wife, was left with a quarter of the estate, with the deceased’s other three sons left with the remaining three-quarters.
Mrs. Manly, who had no assets, little income and was dependant on her deceased husband for support, made an Application to the Court for a further provision out of the estate. She was unsuccessful in her claim, because the Court ruled that adequate provision had been made for her.
A final word
If you believe that the Will of the deceased does not make adequate provision for you, then you may be able to make a Family Provision Application for further maintenance and support out of the estate. In each case the outcome will vary according to the facts in question.
