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A common and effective way to challenge a will is under a Family Provision Application. 
Only certain people can bring the application under the Succession Act 1981 (Qld). 

 

Who can bring a Family Provision Application?
In order to challenge a will under this Act, you must be one of the parties prescribed by the Act.

An interested party must be:

	A spouse (including de-facto spouses);
	A child (including step-children); or
	A dependant (can include a parent of the deceased).

 

The dependant can be any person who is wholly or substantially maintained or supported by the deceased and who is also:

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

 

For an application to be brought, notice of the intention to make the application needs to be brought within six months of the date of death and the application must be brought within 9 months of the date of death. 

That given, it may be possible to appeal to the court to hear the application outside of these time restrictions. Just because you may be eligible to bring an application for Family Provision, does not necessarily mean that it will succeed. 

 

What does the court take into consideration?
The court will consider the ongoing need for support and provision to the dependant or spouse.  Especially where it is the case that the applicant is quite comfortably able to provide for themselves, the court will not provide for this dependant.

 

The court will also look to the relationship between the deceased and the dependant.  If it appears that the applicant’s relationship with the deceased, or character of the dependant disentitles him or her from inheriting under the will, then the court may refuse to make provision for the applicant under the will.

 

A good example of where the court decided to make provision for a dependant was the decision of Currey v Gault [2010] QSC 27.  A father had a son by his first wife and had remarried.  In the father’s will, he left everything to his second wife.  When the step-mother died, the will had not provided for her step-son at all.

 

The court found that the son had been a loving and respectful son and the father had regarded his son with pride and affection.  The son was in a modest financial position with no real prospect for advancement.  There was no reasonable explanation for the obvious exclusion of her step-son under her will.  The court in that instance found that there was a moral duty for the step-mother to provide for her step-son. 

 

This case example provides reasons for when the court is likely to make provision under a will.  There are reasons for when the court is unlikely to make provision under a deceased’s will such as the case of Manly v The Public Trustee of Queensland & Anor [2008] QCA 198. 

 

In that situation, the deceased’s estate was very modest.  The testator had married the applicant in the remaining few years of his life.  Under his will he divided his estate evenly between his three sons and the applicant.

 

In that situation, the applicant was not successful in claiming that her provision was inadequate as the estate was very modest, the relationship was a relatively new one, and the applicant had pursued the matter to the courts when it was entirely possible to settle the matter outside of the courts.   The court did not award her costs of bringing the application out of the estate either. 

 

It would appear that the court will not look favourably on an applicant for provision if they have not explored all other avenues of resolving the matter.

 

When considering making a family provision application it is necessary to seek the advice of a qualified solicitor in order to make a professional assessment of the avenues of resolution and likely success of an application.

 

"The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of Rostron Carlyle's legal practitioners who will consider their particular circumstances".