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Disputing a Will: Making a claim for further provision

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If you have been left a smaller portion of an estate under a will or been left out altogether you may be wondering how to make a claim on the estate.  It is important to know at the outset that disputing a will is not about equalising distributions amongst siblings or a consideration of what is fair.  There are strict legal principles that are considered and each case is different.

Meet Kathy is 50 years of age.  Kathy is single.  She has 3 children, all adults now, one has disabilities.  Kathy has some intellectual delays.  Kathy manages her own cleaning business and makes enough to make ends meet.  She has no savings and no superannuation.

Kathy’s mother is Margaret.  Her father passed away long ago. Kathy has 3 older brothers.  Kathy looked after her mother and the boys running around after everyone and doing what was expected of her.

In her will, Margaret appointed her oldest son James as executor.  Margaret left James her home. She left Kathy the amount of $5,000 and divided the balance ($500,000) between James and the two other boys Wayne and Rodney.

Kathy makes an application for further provision from Margaret’s estate.  Kathy says that $5,000 is inadequate for her proper maintenance.

What does the law say?
In Queensland Section 41 of the Succession Act 1981 sets out the law which relates to applications for further provision.  In summary Section 41 says:

If a person dies with or without a will and estate  has not made adequate provision for the proper maintenance and support for their spouse, child or dependant, the Court may order such provision as the Court thinks fit.  Further the court may refuse to make an order if the Court thinks that the Applicant’s character or conduct disentitles them from an order or where to refuse to make an order would be reasonable. *

When must an application be brought?
An applicant must give the Executor notice in writing of their intention to bring a claim within 6 months of the date of death and lodge their application with the Court within 9 months of the date of death.  If the Executor has not received any notice of a claim within 6 months they are free to distribute the estate.

Who can apply?
An application can be brought by a spouse, child or dependent.

A spouse includes a married spouse or a defacto spouse.

A married spouse is validly married at the time of death.  For a separated married couple, it is a divorce order that ends the spouse relationship.  At law, a married but separated spouse continues to be a spouse until a divorce order is granted.

A former (divorced) spouse may be considered in Queensland provided they have not remarried and they are receiving or entitled to receive maintenance at the time of death.

A defacto spouse is one of two persons living together as a couple on a genuine domestic basis for a continuous period of at least two years.  In addition to living together there are a number of other factors include the length of time living together and their relationships generally, financial support for each other, shared property, care and support of children and other factors.

A child includes biological children, adopted children and step-children.  For the “step” relationship to continue the relationship between the biological parent and the step parent must have continued at the time of the death of the biological parent.

A dependant in Queensland must be a parent of the deceased, a parent of a surviving child of the deceased or a person under 18 years and that person must be wholly or substantially maintained or supported by the deceased at the date of death.

What do the Courts consider when deciding a claim?
In summary, the law says that the following process applies to applications for further provision.

There is a two stage process.  First the Court must decide whether the applicant has been left without adequate provision for their proper maintenance, education and advancement in life.  Second, the Court must decide what provision should be made from the estate for the Applicant.**

In considering the first stage the Court must consider whether the proper level of maintenance was made having regard to the applicant’s financial position, the size and nature of the deceased’s estate, the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims on the estate.**

The Court considers similar considerations when assessing the second stage.

The word “adequate” directs the Court to an assessment of the “needs” of the Applicant.  It includes an assessment of present and future needs including the need to guard against unforeseen contingencies and must be assessed with regard to the whole of the context of the matter.

It is not a question of fairness.  The law does not provide for an assessment of what is fair nor do they intervene to correct hurt feelings or any sense of wrong.

The test is what provision a wise and just testator would have thought their moral duty to make in the interests of the applicant, having regard to community standards and considering such provision in light of the freedom for a testator to dispose of their estate as they wish.***

Returning to Kathy –  it is likely that Kathy will be successful in making a claim for further provision from her mother Margaret’s estate.  Kathy is a child of the deceased and entitled to apply.  Where the will provides the amount of $5,000 to be paid to Kathy, Kathy can demonstrate that she has not received adequate provision.  In assessing whether the provision is adequate the Court will consider Kathy’s need, her personal circumstances, modest finances, the desire to provide a small nest egg for her future.

There is much involved in considering a claim made on estate.  Understanding that it is not a question of what is fair is the first step.  There are significant consequences relating to costs if an application is brought without merit and you may end up with a bill to pay the legal costs of other parties if you are not successful.  For those reasons seek legal advice about the processes and get a proper assessment of your claim before you lodge your application.


* Section 41(1) and (3) Succession Act (Qld) 1981

** Singer v Berghouse (1994) 181 CLR 201, 209-210

*** Warriner v McManus & Warriner [2015] VSC 314

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