This article is Part 2 of our series surrounding disputed estates, "A Hero's Journey - The Path of Estate Disputes." To read Part 1, click here.
In the realm of estate matters, a Family Provision Application (FPA) emerges as the primary avenue for seeking provisions from a deceased person's Will.
Governed by section 41 of the Succession Act 1981 (Qld), FPAs entail a meticulous process guided by legal principles and criteria.
The Legal Framework: Section 41 Unveiled
Section 41 lays down the foundational principles guiding Family Provision Applications:
Provision for Maintenance and Support:
If a deceased person's Will fails to adequately provide for the proper maintenance and support of their spouse, child, or dependant, the court, upon application, may order suitable provision from the estate.
Eligibility Criteria:
To initiate an FPA, one must demonstrate eligibility, absence from the Will, or inadequate provision within it. The application must be lodged within 9 months of the date of death, with notice given within 6 months.
Decoding 'Eligible Persons'
In Queensland, 'eligible persons' who are eligible to file an FPA include:
Spouse: Encompassing husbands, wives, de facto partners, or civil partners.
Child: Encompassing biological, step, or adopted children of the deceased.
Dependant: Any individual substantially maintained or supported by the deceased, such as a parent, minor child, or person under 18 or even a 'sugar daddy'-style relationship.
Time Limits and Safeguards
There is a 9-month time limit for initiating an FPA, ensuring timely resolution. However, personal representatives of the estate are protected from claims if proper distribution occurs after 9 months, provided they act without notice of any impending application.
Navigating the Legal Terrain
The court employs multifaceted criteria when assessing FPAs, focusing on the applicant's financial status, the estate's nature, and the dynamics of the deceased's relationships. Factors such as the applicant's contributions, the deceased's moral duty, and competing claims shape the court's deliberations.
Commencing Your Claim
Initiating an FPA in Queensland involves filing an originating application, draft consent orders, and a comprehensive affidavit in the Supreme Court. The affidavit elucidates the applicant's entitlement, highlighting the inadequacy of provision and other pertinent details concerning the estate.
For more information on family provisions applications, click here.
Partnering with the Right Legal Team
Given the complexity of the FPA process, engaging seasoned legal professionals is paramount. With a deep understanding of the legal intricacies and a commitment to maximising entitlements, the right legal team can navigate the complexities of FPAs and advocate effectively on behalf of their clients.
In essence, FPAs stand as a vital recourse for ensuring fair and equitable distribution of estates, underscoring the legal system's commitment to upholding principles of justice and equity. By leveraging legal expertise and strategic advocacy, individuals can assert their rights and secure provisions essential for their well-being and advancement in life.
At RHC Solicitors, we are highly experienced FPAs and the complex legal terrain that is involved; from successful application on behalf of spouses, children, and even hidden love interests.
If you're interested in discussing how our solicitors can help you, don't hesitate to contact us today.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
Scott A. Green ©
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