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  • Writer's pictureEvan Sarinas

Guide to Family Provision Applications in Queensland

Updated: 7 days ago


When a loved one passes away, the distribution of their estate is generally guided by the instructions they leave behind in their will. However, there are instances where the will may not make adequate provision for the maintenance and support of certain family members and dependents.

In Queensland, such individuals may have the right to contest the will through what is known as a Family Provision Application (FPA).


This blog explores these differences, providing essential insights for potential property owners and legal professionals.


Table of Contents



 


What is a Family Provision Application?

 

A Family Provision Application, under Queensland law, is a legal process whereby certain eligible individuals can seek additional provision from the estate of a deceased person.


This application is intended to ensure that the deceased's estate adequately provides for the proper maintenance and support of those who have a legitimate claim to the deceased's assets, beyond what was specified in the will.


In Queensland, you must make your Family Provision Application within 9 months of the person's death.


If you don't make your application in time, the Court might not consider your application

 

Who Can Apply?

 

The Succession Act 1981 (QLD) specifies who may be eligible to make an FPA. Generally, the following individuals are eligible:


  • A spouse (including a husband, wife, de facto partner, or civil partner of the deceased)

  • A child of the deceased (including a biological, adopted, or step-child)

  • A dependent (any person who was being wholly or substantially maintained or supported by the deceased at the time of their death, including a parent, or a parent of a child under 18 of the deceased)

 

Grounds for Making an Application

 

To make a successful FPA, applicants must demonstrate that the deceased’s will does not make adequate provision for their proper maintenance and support. The court considers several factors, including:


  • The applicant’s financial needs and circumstances

  • The size and nature of the deceased's estate

  • The relationship between the applicant and the deceased

  • Any contributions (financial or otherwise) made by the applicant to the deceased’s estate or welfare

  • The financial circumstances of other beneficiaries

 

The Legal Process

 

The process for making a Family Provision Application involves several steps:


Filing an Application

The application must be filed within nine months of the death of the deceased. However, it is possible to seek permission from the court to apply after this period.


Mediation

Often, the court will order mediation between the parties before proceeding to a court hearing. Mediation serves as an attempt to reach an agreement without the need for a trial.


Hearing

If mediation fails, the matter will proceed to a hearing where the court will consider evidence from all parties and make a decision.

 

Considerations for Testators and Executors

 

Speaking with an experienced Succession Lawyer enables you to receive advice comprehensive advice about your unique circumstances and what steps you can take to minimise the risk of FPAs, which can be stressful and costly for all involved.


Executors of wills should be aware of the potential for FPAs and manage the estate's administration accordingly.


This includes ensuring that all potential claimants are aware of their rights to contest the will and preparing for the possibility of an FPA affecting the estate's distribution.


 

Conclusion

 

Family Provision Applications serve as an essential mechanism in Queensland to ensure fairness in the distribution of a deceased’s estate.


For potential applicants, it is crucial to understand eligibility requirements and the grounds on which an application can be made.


Testators should obtain independent legal advice when considering and drafting their will, as should Executors when administering the Estate.


Anyone considering an FPA should seek legal advice to better understand the intricacies of the process and to navigate the legal system effectively, to ensure the most appropriate cause of action is pursued. For example, in some cases arguing a constructive trust might be more appropriate depending on the individual circumstances.

 

For legal professionals or individuals navigating these sensitive issues, it's crucial to consult with lawyers who specialise in estate and succession planning. They can provide guidance tailored to the specifics of your situation, ensuring that your rights are protected throughout the legal process.

 

Choosing the right Estate Planning Lawyer in Townsville can protect your interests, whether you are looking to get your succession affairs in order, whether you are a disappointed beneficiary seeking advice about a potential FPA or an executor facing an FPA dispute.

 

Reach out to the experienced team of Estate Planning and Wills Lawyers at Sarinas Legal today.




Evan Sarinas - Principal of Sarinas Legal

With over 30 years of legal expertise, Evan Sarinas is the founder and Principal of Sarinas Legal, renowned for his proficiency in estate planning and succession law. Based in Townsville, Evan is dedicated to ensuring that clients understand their rights and options, particularly in navigating complex matters such as Family Provision Applications (FPA).


FPA allow eligible individuals in Queensland to contest a will if they believe it does not adequately provide for their maintenance and support.


Evan's extensive experience includes guiding clients through the intricacies of FPA, ensuring their interests are protected during what can be a sensitive and legally demanding process.


For guidance on estate planning, wills, and navigating FPA in Townsville, contact Evan Sarinas and the experienced team at Sarinas Legal today.


 

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