What does the Court consider?

Family provision matters are highly fact-specific.

The Court may consider matters including:

• the applicant’s financial position and needs;

• the applicant’s age and health;

• the nature and duration of the relationship between the applicant and the deceased;

• the nature of the applicant’s relationship with other members of the deceased’s family;

• the deceased’s obligations and responsibilities to the applicant and other persons;

• the size and nature of the deceased’s estate;

• any provision already made for the applicant;

• the financial circumstances of other beneficiaries and potential beneficiaries;

• any contribution made by the applicant to the deceased’s welfare or to the acquisition, conservation or improvement of property;

• the circumstances in which the deceased made their will;

• the deceased’s wishes and intentions, where relevant;

• any conduct or other circumstances that may be relevant under the legislation; and

• any other circumstances considered relevant by the Court.

The importance of individual factors will vary from case to case.

The size and nature of the estate

The value and composition of an estate can have a significant effect on a family provision application.

An estate may consist of a family home, investment property, shares, business interests, bank accounts, personal assets and other property.

There may also be questions about whether particular assets form part of the estate at all.

For example, jointly owned assets, superannuation, life insurance and assets held through trusts or companies may require separate consideration.

A proper assessment of the estate is therefore an important part of preparing or responding to an application.

Family provision applications and adult children

A claim by an adult child is not determined simply by the fact that the person is a child of the deceased.

The Court considers the circumstances relevant to the particular applicant and estate.

Factors may include the applicant’s financial position, age, health, employment and earning capacity, relationship with the deceased, contributions to the deceased or their estate, and the competing claims and needs of other beneficiaries.

Accordingly, family provision litigation involving adult children can be particularly fact-sensitive.

Responding to a family provision application

An application can have significant consequences for an estate and its beneficiaries.

Executors and administrators may need to consider:

• whether the applicant is an eligible person;

• whether the statutory requirements for the application have been satisfied;

• the financial and personal circumstances of the applicant;

• the circumstances of other beneficiaries;

• the value and composition of the estate;

• the deceased’s relationship with the applicant;

• the deceased’s reasons for making the will;

• evidence concerning the deceased’s wishes and intentions;

• any contributions made by the applicant or other beneficiaries;

• the likely costs of defending the application; and

• whether the matter should be negotiated or mediated.

Beneficiaries may also have an interest in the proceedings and may need independent legal advice.

Evidence is critical

Family provision applications are generally determined on evidence concerning the circumstances of the deceased, the applicant and the estate.

Depending upon the circumstances, evidence may include:

• wills and earlier testamentary documents;

• correspondence and other documents created by the deceased;

• medical records;

• financial records;

• property records;

• evidence concerning the deceased’s relationships;

• evidence concerning financial dependency or support;

• employment and income information;

• evidence of contributions to the deceased or the estate;

• evidence from family members and other witnesses; and

• evidence concerning the circumstances in which the deceased made their will.

It is often important to identify and preserve relevant evidence before memories fade or documents become difficult to locate.

The deceased’s wishes

A deceased person’s testamentary wishes can be relevant to a family provision dispute.

However, the existence of a clear intention to benefit one person rather than another does not necessarily determine the outcome of an application.

The Court must apply the statutory framework and consider all of the relevant circumstances.

Evidence explaining why the deceased made particular provisions—or deliberately made limited or no provision for a person—may nevertheless be important.

Contributions and family relationships

Family provision disputes can involve many years of family history.

A person’s contribution to the deceased’s welfare or to the acquisition, conservation or improvement of property may be relevant.

Equally, the nature of the relationship between the applicant, the deceased and other family members may be relevant to the Court’s assessment.

These matters can be difficult to establish and may require careful consideration of documentary and witness evidence.

Time limits

Family provision applications in Queensland are subject to statutory time limits.

In general terms, an eligible person wishing to make an application must give the executor or administrator notice of their intention to make the application within six months after the deceased’s death, and an application to the Court generally must be made within nine months after the deceased’s death.

There are important qualifications and exceptions to these requirements, including circumstances in which the Court may permit an application to proceed out of time.

Because of the potential consequences of missing a statutory deadline, anyone considering a family provision application should obtain legal advice promptly.

Negotiation and mediation

Many family provision disputes can be resolved without a final hearing.

Negotiation and mediation provide an opportunity for the parties to consider the competing interests in a structured environment and potentially reach an agreement about the distribution of the estate.

Mediation can be particularly valuable where:

• the parties have an ongoing family relationship;

• the costs of a contested hearing would be substantial;

• the outcome of litigation is uncertain;

• the estate contains assets that are difficult to divide; or

• the parties want greater control over the final outcome.

Lee Lawyers has substantial experience in negotiation, mediation and civil litigation.

Where a negotiated resolution cannot be achieved, we can advise on and conduct the necessary court proceedings.

Acting for applicants

If you are considering whether to make a family provision application, we can advise you about:

• whether you appear to fall within an eligible category;

• the relevant statutory requirements;

• the circumstances that may be relevant to your claim;

• the available evidence;

• the value and nature of the estate;

• competing claims and beneficiaries;

• likely costs and risks;

• the prospects of resolving the matter without a hearing; and

• the appropriate procedural steps.

An assessment of a potential application should be based upon the particular circumstances rather than simply the value of the inheritance that may have been received or expected.

Acting for executors and beneficiaries

Lee Lawyers also acts for executors, administrators and beneficiaries responding to family provision applications.

We can assist in assessing the claim, gathering evidence, protecting the interests of the estate and beneficiaries, negotiating with the applicant and, where necessary, defending the proceedings.

An executor may have obligations to the estate and beneficiaries that need to be considered separately from their own personal interests.

Where a potential conflict arises, independent legal advice may be appropriate.

Complex estates

Some family provision applications involve issues extending beyond the simple distribution of assets under a will.

For example, there may be questions concerning:

• jointly owned property;

• trusts;

• companies and business interests;

• superannuation;

• life insurance;

• lifetime gifts;

• loans between family members;

• disputed ownership of property;

• alleged promises concerning inheritance; or

• assets located outside Queensland or Australia.

These issues can materially affect the assessment of an estate and the competing interests of the parties.

Lee Lawyers’ broader litigation practice allows these related legal issues to be considered as part of the overall dispute.