When people talk about "challenging a Will" or "contesting an estate", they are usually talking about a Family Provision Application (or "FPA" for short). When a person makes an FPA, they are essentially saying to the Court that they believe they deserve more than what they are provided for in a person's Will.
We often see clients who have been told by family and friends that anyone is eligible to challenge their Will, but this is not the case.
The Succession Act 1981 (Qld) ("the Act") provides only three classes of people who are eligible to make an FPA claim:
A spouse - this includes husbands, wives, de facto partners and civil partners;
A child - this includes stepchildren and adopted children; and
A dependant who is wholly or substantially maintained or supported by the deceased at the time of death and who is:
- a 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.
A person bringing an FPA claim ("an applicant") must give the personal representative of an estate written notice of a claim within 6 months of the date of death and commence proceedings in Court within 9 months of the date of death. The Court may at its discretion hear and determine an application outside these time periods in extenuating circumstances.
The Court can:
Order such provision as the Court sees fit - in making this determination, the Court will look at the financial need of an applicant and what would constitute adequate provision for their proper maintenance and support, or
To refuse to make an order in favour of an applicant whose character or conduct the Court considers has disentitled that person to the benefit of an order.
Please contact our Sucession Planning and Estates Team if you would like more advice in relation to Family Provision Applications.