Family Provision Claims Brisbane.
We are standing up for you and your rights
Representing eligible individuals in making or defending claims for additional provision from an estate under family provision legislation.
At CG Legal, we understand that family provision claims can arise when individuals feel they have not been adequately provided for in an estate.
A family provision application involves seeking a share or an increased share from the estate of a deceased individual by making an appeal to the Supreme Court.
Maximising Your Wealth through Strategic Guidance.
Our dedicated team of lawyers specialises in representing eligible individuals, both claimants and estate executors, in making or defending claims for additional provision under family provision legislation.
Our Family Provision Claims Services:
Claimant Representation: We provide compassionate and expert representation to eligible individuals who believe they have not been fairly provided for in a deceased person’s estate.
Executor Defense: Our team assists estate executors in defending against family provision claims, ensuring that the deceased’s intentions are respected while complying with legal obligations.
Legal Assessment: We thoroughly assess family provision claims to determine their merits and provide objective advice on the likelihood of success in pursuing or defending a claim.
Mediation and Negotiation: We aim to resolve family provision disputes through mediation and negotiation, seeking mutually acceptable outcomes without resorting to costly and lengthy court battles.
Litigation Support: When necessary, we provide robust litigation support, representing clients in court to protect their rights and interests in family provision matters.
Family Provision Applications Brisbane.
When a testator bears a responsibility to provide for an individual but fails to fulfill this duty, the disadvantaged party possesses the right to challenge the will by initiating a Family Provision Application. This legal entitlement is established by the Succession Act 1981, permitting eligible claimants to approach the Supreme Court to seek a reevaluation and potential redistribution of the deceased individual’s estate.
It’s essential to note that the court will solely entertain applications from individuals who meet the criteria as eligible claimants. In the context of Queensland, those who possess the legal standing to contest a will encompass the deceased’s spouse (both de facto and legally married, as well as those in registered partnerships) and children (including biological, adopted, and stepchildren). The final category of eligibility pertains to dependents of the deceased; however, this category is limited to individuals who fall into specific relationships with the deceased, such as the parent of the deceased, a parent of the deceased’s child, or a minor child.
You have the grounds to file a family provision claim if you meet the following criteria:
- Qualify as an ‘eligible person.’
- Find yourself excluded from the deceased’s will.
- Believe that you have not received what you rightfully should have.
The laws in each Australian state specify distinct timeframes within which a family provision claim must be initiated following the date of the individual’s passing. Consequently, seeking advice promptly is imperative to avoid missing the stipulated deadline in your respective state.
Who Qualifies for a Family Provision Claim?
Only individuals classified as ‘eligible persons’ have the legal standing to pursue a family provision claim. The term ‘eligible person’ encompasses:
- The spouse or partner of the deceased, whether in a marital or de facto relationship (including same-sex couples).
- Any child of the deceased, including those who were adopted.
- Former spouses or partners of the deceased.
- Individuals who were, at any given time, either wholly or partially dependent on the deceased, and who are either the deceased’s grandchild or resided within the same household at that particular time.
- Persons who shared a close personal relationship with the deceased at the time of their passing.
If you fall into the category of an eligible person or suspect that you may meet the criteria for making a claim against the deceased’s estate, it is strongly advisable to seek legal counsel promptly.
When an eligible party submits a Family Provision application, the Supreme Court takes into account a range of factors that revolve around the claimant’s personal circumstances and the characteristics of the deceased estate. These factors are crucial in determining the outcome of the application:
The Deceased Estate:
- The size and overall value of the deceased estate.
- The legitimacy of any competing claims made against the deceased estate.
- Contributions made by the applicant or other beneficiaries to the deceased estate.
- The age of the claimant.
- The claimant’s current state of health.
- The claimant’s financial position and stability.
- Whether the deceased provided financial support to the claimant at any point.
- Whether the claimant has a legal entitlement to support from any other source.
- The presence of any dependents reliant on the claimant.
- The nature of the relationship between the claimant and the deceased.
- The existence of any estrangement between the two parties.
- The relationships between the deceased and other potential claimants.
- Any past conduct on the part of the claimant that may disqualify them from receiving provision.
- Whether the claimant has engaged in mistreatment or ill-treatment of the testator in the past.
These considerations are integral to the court’s decision-making process when evaluating a Family Provision application, ensuring a comprehensive assessment of the claimant’s eligibility and the merit of the application.
Challenging a Will in Queensland (Family Provision Claim).
Contesting a will, which is also referred to as initiating a family provision claim, is the legal process of seeking an increased or more equitable provision from the estate of a deceased individual.
Several critical factors need to be considered when pursuing a family provision claim, including:
- Eligibility as an Applicant: Determining whether you qualify as an eligible applicant.
- Meeting Time Limits: Ensuring that you file your claim within the specified timeframes.
- Court Considerations: Understanding the factors that the court evaluates when rendering a decision.
If you have not been adequately provided for in a will, or if you have been entirely excluded from the will, you may have grounds to initiate a family provision claim.
In Queensland, you can contest a will by submitting a family provision application in either the District Court or the Supreme Court.
Challenging a Will in Queensland: The Two-Step Process
The process of challenging a will in Queensland can be broken down into two primary stages. The first stage involves a basic assessment of the provision granted by the will. This initial evaluation aims to determine whether the provided amount is insufficient and, if so, what would constitute proper maintenance.
This assessment takes into account a range of factors, including:
- The financial circumstances of all involved parties.
- The nature of the relationship between the deceased and individuals making claims.
- Support provided by the deceased to the claimant during their lifetime.
- Promises or statements made by the deceased to the claimant.
- The size and composition of the deceased’s estate, as well as any contributions made by the claimant.
- The customary standard of living to which the claimant has become accustomed.
- The overall nature of the relationship between the applicant and the deceased.
The second step involves determining what the appropriate level of maintenance is and what constitutes an adequate provision. This assessment ultimately influences the court’s order regarding the matter.
Eligibility Requirements for a Family Provision Claim
When pursuing a family provision claim in Queensland, specific eligibility requirements must be met. To qualify, you must:
- Be recognized as an eligible applicant.
- File your application within the designated time limit.
The following categories are considered “eligible persons” in Queensland who can apply for a family provision order:
- A spouse (including a husband, wife, de facto partner, civil partner, or dependent former spouse).
- A child of the deceased (including stepchildren or adopted children).
- Dependents of the deceased, which can include:
- Parents of the deceased.
- Parents of a surviving child of the deceased who is under 18 years old.
- Individuals under 18 years old who were wholly or substantially maintained or supported by the deceased at the time of their death.
Initiating a Family Provision Claim.
In Queensland, claimants are required to notify the executor or administrator of their intention to bring a family provision claim within six months of the death date, with the claim itself to be filed in court within nine months of the deceased person’s passing.
While the court does have the discretion to hear applications that are submitted out of time, it’s the applicant’s responsibility to provide sufficient grounds for extending the time limit. Factors considered by the court in this context include the presence of a reasonable explanation for the delay, any potential prejudice to beneficiaries, and whether the estate remains intact.
Costs of a Family Provision Order
Court costs in family provision claims are at the discretion of the court, usually following the outcome of the case. This means that the prevailing party typically has some of their legal costs covered by the other party.
In cases involving will challenges, the court may consider factors such as compliance with court rules, the introduction of irrelevant material, the estate’s size, any settlement offers made by the parties, and other relevant considerations.
If the court orders provision for the applicant and the applicant succeeds, the estate generally covers the applicant’s standard costs. Additionally, if the court believes there were valid reasons for bringing the challenge, the court may grant the applicant’s costs to be paid from the estate.
Conversely, if the applicant’s claim is unsuccessful, the court may issue no orders regarding costs, making the applicant responsible for their own expenses. In some instances, the court may direct the applicant to cover the executor’s costs for defending the proceedings.
Seeking guidance from a specialised lawyer in this area is highly recommended, as they can assess your case, provide insight into its strength, and offer advice on potential cost orders.
Frequently Asked Questions
The cost of contesting a will in Queensland can vary. It depends on the specifics of the legal proceedings. If the case settles early, the costs are generally lower compared to situations that proceed to a trial.
Yes, there are time limits. In Queensland, you must notify the executor within six (6) months from the date of the deceased’s death and file the family provision application within nine (9) months from the date of the deceased’s passing.
In Queensland, the following individuals have the legal standing to contest a will: spouses, children, and dependents. This includes children (including unborn children), stepchildren, and adopted children. It also encompasses husbands or wives of the deceased, de facto partners, registered partners, former spouses or partners, dependent parents of the deceased, parents of surviving children under 18 years, and dependent individuals under 18 years.
Typically, in court proceedings, costs follow the outcome. This means that the prevailing party has a portion of their legal costs covered by the opposing party. In some instances, costs may be paid from the estate.
No, most family provision claims are resolved outside of court. The initial step is to present your case to the estate’s executor, and often the claim is settled without the need for court intervention.
When contesting a will in Queensland, you have six (6) months from the date of death to notify the executor of your intention to make a family provision claim, and nine (9) months from the date of death to file the claim in either the District Court or Supreme Court of Queensland.
If you believe you’ve been unfairly excluded from a will, meet the eligibility criteria, and are within the specified time limit, you can make a family provision application. This legal action seeks a court order for a more equitable share of the deceased’s estate, commonly referred to as contesting a will.
Yes, you can contest a will if you qualify as an eligible person, such as a spouse, child, or dependent, and the time limits have not expired. There are some exceptional cases where individuals may contest a will outside the usual time limits, although such situations are uncommon.
No, the initial step in the process is to notify the executor of the estate of your intention to make a family provision claim. If you meet the eligibility criteria, adhere to the time limits, and have a valid claim, it’s highly likely that the matter will be settled without proceeding to court.
As someone who was financially dependent on the deceased, you may have the option to make a claim against the estate if you meet specific criteria. This includes being a parent of the deceased, a parent of a surviving child under 18 years of the deceased person, or a person under 18 years who was wholly or substantially maintained or supported by the deceased at the time of their death.