• Ellison Moschella & Co

Challenging Estates

There are two conflicting schools of thought in relation to challenging an estate or a Will:

  1. Someone should be able to leave their estate to whoever they wish – it was there money after all; or

  2. People should be morally bound to support their family and dependants.

The position in Queensland is in favour of the second; which is interesting as in some circumstances there isn’t any legal obligation on a will-maker to support some potential claimant’s whilst they were alive (e.g. adult children). Be that as it may, our social policy allows for these types of claims which also presumably reduces the burden of welfare payments.

Keep in mind it is possible to challenge an estate even if the deceased died without a Will.

Policy reasons for family provision legislation In Re Allen [1922] NZLR 218 at 220, justice Salmond summed up the family provision legislation by saying:

‘… [the family provision legislation] is designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and desserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty.’

Who can make a claim? Not everyone can make a claim on a deceased estate. Section 41(1) Succession Act 1981 (Qld), which provides:

‘If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.’

Who is eligible to make a family provision application? In Queensland, only a spouse, a child, or a dependant of a deceased person can make a family provision claim.

Spouses The term ‘spouse’ is defined in section 5AA Succession Act 1981 (Qld) to mean:

  • the husband or wife of the deceased person;

  • a de facto partner who lived together with the deceased person on a genuine domestic basis for a continuous period of at least two years ending on the deceased person’s death;

  • a registered partner within the meaning of the Acts Interpretation Act; or

  • a divorced former husband or wife of the deceased person who had not remarried prior to the deceased’s death and who was, on the deceased’s death receiving, or entitled to receive, maintenance from the deceased.

Children The term ‘child’ as used in section 41(1) Succession Act 1981 (Qld) means:

  • a biological child of the deceased person (including an unborn child who survives for 30 days after birth);

  • an adopted child of the deceased person; or

  • a stepchild of the deceased person.

Which does not include grandchildren.

Dependants The term ‘dependant’ used in section 41(1) Succession Act 1981 (Qld) means a person who was being wholly or substantially maintained or supported by the deceased person (otherwise than for full and valuable consideration) at the date of the deceased person’s death being:

  • a parent of the deceased person;

  • a parent of a surviving child under the age of 18 years of the deceased person; or

  • a person under the age of 18 years.

Are there time limits? Yes! There are strict time limits. You should consult your solicitor as soon as possible to ensure a claim can still be made. Similarly if you are an executor of an estate you should only distribute the estate on the advice of a solicitor. Distributing too early could make you personally liable should a claim be made against the estate.

How are family provision applications determined? Just because a person is eligible to make a family provision application doesn’t mean that they will automatically succeed. For one of these claims to be successful the applicant must be able to show:

  • as at the time when the deceased passed away that they have a need for proper maintenance and support greater than what they have been left under the estate; and

  • that they have a moral claim to a part of the estate taking into account all of the facts and circumstances.

Relevant facts and circumstances. The court will try to place itself in the position of the deceased person when deciding one of these matters. As everyone is unique, every family provision application is also unique; therefore factors which are relevant in one case may not be in another. Past cases do provide some guidance however; e.g. the following have been found to be relevant:

  • the size of the estate;

  • the applicant’s financial position, age, state of health and prospects for the future;

  • the relationship between the applicant and the deceased;

  • support given by the applicant to the deceased personally or in developing assets or businesses (e.g. the family farm);

  • encouragement given to the applicant by the deceased to base their lifestyle on the understanding that he or she would inherit certain property;

  • poor conduct of the applicant towards the deceased which weakens the applicant’s claim on the estate;

  • the relationships between the deceased person and others who could make a claim on the estate; and

  • the financial position, age, state of health and prospects for the future of the beneficiaries named in the will.

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