Challenge a Will
In certain circumstances, a family provision claim can be pursued against an estate if you feel that your bequest, or lack thereof, insufficiently provides for your ongoing maintenance and support.
People who are eligible to pursue a family provision claim in Queensland are:
- a spouse or de facto;
- a child (including stepchildren or adopted children); and
- a dependant (being a person who was wholly or substantially maintained or supported by the deceased at the time of their death and who are the parent of the deceased, the parent of a surviving child under the age of 18 years of the deceased or a person under the age of 18 years.
Falling into one of the above categories does not necessarily result in an automatic entitlement from the estate. Indeed, an argument that relies solely on the Will being ‘unfair’ will rarely, if ever, be successful.
Evidence establishing the deceased owed a moral duty to provide for a family member or dependant must be established together with proof that financial maintenance and support is needed. Factors such as estrangement, abuse toward the deceased by the family member or dependant, drug or alcohol addiction and the financial circumstances of the applicant compared to the other beneficiaries are all taken into consideration.
Notification of an intention to pursue a family provision claim in Queensland must be served on the executor of the estate within six (6) months of the deceased’s date of death.
If an agreement is not reached before nine (9) months from the date of death has elapsed, proceedings must be filed in the District or Supreme Court of Queensland to protect your interests.
As an executor, receipt of notification of an intention to pursue a claim prevents the estate from being distributed to the beneficiaries until the claim is resolved. Any distribution after notification is received may expose the executor to personal liability.
As a beneficiary, failure to provide notification before six (6) months has elapsed could result in the executor validly distributing the estate. Any attempt to pursue a claim after six months and after distribution has occurred is therefore often fruitless.
Be aware that each State has different time limitations and rules regarding who can be a claimant and when notification must be served, and court proceedings filed. If the estate is being administered in a State other than Queensland, we recommend you contact Dillon Legal for advice.
If you are an executor or beneficiary and would like to discuss a family provision claim for or against an estate, contact us for legal advice without delay as strict time limits apply.