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Alternative Dispute ResolutionCommercial LawEstate Planning & DisputesFamily LawNewsHow can I contest what has been left to me in an estate?

21 April 2022

Estates are often contested among the family of the deceased, most often arising in the context of a beneficiary named in the will of the deceased being dissatisfied with the amount of money (or other assets) left to them.

In Queensland, the statutory mechanism by which a disaffected individual (often a beneficiary) can seek to contest an estate is by way of a family provision application (FPA), pursuant to section 41 of the Succession Act 1981 (Qld).

To have standing to bring an FPA, the individual must be an ‘eligible person’, whereby they are either the spouse of the deceased (including a husband or wife, de facto partner, or civil partner), a child of the deceased (including adoptive children), or a dependant of the deceased.

Eligible persons who wish to bring an FPA must comply with the following prescribed requirements:

  • within 6 months from the date of death of the deceased, give notice of an intention to bring a claim against the estate; and
  • within 9 months of the date of death of the deceased, file the FPA in Court against the executor of the estate.

The test to be applied when considering an FPA is whether adequate provision has been made from the deceased person’s estate for the applicant’s proper maintenance and support. An applicant needs to file an affidavit in support of their FPA, wherein the applicant sets out the basis upon which they consider that inadequate provision has been made to them from the estate.

Ultimately, the following factors will be considered by a Court in determining whether any provision ought to be made to the applicant:

  • the net value of the estate;
  • the financial position of the applicant;
  • the age, sex, and health of the applicant;
  • the current means of the applicant;
  • the closeness of the relationship between the applicant and the deceased;
  • contribution of the applicant to the size of the deceased’s estate;
  • the character and conduct of the applicant;
  • whether there are any other claims to the estate, and if so, the nature of such claims; and
  • any other factors the Court may consider relevant.

However, it is rare for a Court to be called upon to determine an FPA, as the vast majority of FPAs settle at a mandatory mediation (or shortly thereafter), rather than proceeding to a trial.

If you have any enquiries regarding FPAs, estate planning (including making a will), or estate disputes, please don’t hesitate to contact us.

Article written by Alex Canavan of our Brisbane office.