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FAMILY PROVISION CLAIM IN QLD

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Have you been left out of a Will or inadequately provided for? Are you contemplating making a claim for family provision or further provision?

Talk to us today! Statutory limitations periods apply to making a claim and differ in each State or Territory.

We can advise you as to your eligibility to make a claim and your likely prospects of success.

What is Relevant When Considering Provision

Once eligibility is confirmed, the legal criteria for family provision applications are:

  • Assessing if the applicant’s maintenance, education, and life advancement needs are unmet by the Will or intestacy (a factual determination involving some judgment)
  • Determining the appropriate provision from the estate for the applicant (a discretionary decision)

The Court will consider all pertinent factors in its evaluation. When reviewing a Family Provision Claim, the Court will consider a comprehensive range of factors. Specifically, the Court will assess:

  • The nature of the relationship between the claimant and the deceased
  • The overall worth and location of the deceased’s assets
  • The applicant’s financial situation, including present and anticipated needs
  • The presence of any disabilities affecting the claimant, be they physical, intellectual, or mental
  • The age of the claimant
  • Contributions by the claimant that may have increased the estate’s value
  • Any prior provisions made for the claimant by the deceased, either during their lifetime or from the estate
  • Support, maintenance, or assistance previously provided to the claimant by the deceased
  • The responsibility of any other individual to provide support to the claimant
  • The character of the claimant
  • Competing claims on the estate
  • Any additional factors deemed pertinent by the Court
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The cost of pursuing a family provision application can be substantial, as it typically involves litigation in the Supreme Court.

Family provision application costs can be substantial, often involving Supreme Court litigation.

Legal expenses vary based on the pursued issues, the extent of legal advice sought, and the behaviour of all litigation parties.

Instructions and the estate executors’ defence significantly impact costs. Cooperation from executors can reduce overall fees.

Court costs are discretionary, typically awarded to the winning party. In Will contests, the court considers rule adherence, irrelevant submissions, estate size, settlement offers, and other relevant factors.

When a Judge approves a provision for the claimant, it is common for the deceased’s estate to cover the claimant’s standard legal expenses. However, if the Court deems the challenge had substantial grounds, it may decide that the claimant’s legal fees should be paid out of the estate.

On the other hand, if the claimant does not succeed and the Judge denies any provision for them, the Judge might not issue a cost order, leaving the claimant to bear their own legal costs. Alternatively, the Judge could require the claimant to pay not only their own expenses but also the legal costs incurred by the executor in defending the action.

This potential financial risk underscores the importance of consulting with a lawyer who is well-versed in this field. Our legal team will evaluate your situation, provide guidance on the merits of your claim, and discuss possible outcomes, including the implications of cost orders. This way, you will have a clear understanding of your position right from the outset.

For considered, competent advice, contact the team at Champion Contested Wills today!

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Important Notice

This article is provided for general interest and informational purposes only. It contains general information and is not tailored to individual circumstances. It does not constitute legal advice and should not be relied upon as such. Always seek the advice of a qualified legal practitioner for specific legal advice tailored to your needs and circumstances. While every effort has been made to ensure the accuracy of the information at the time of writing, applicable laws may change.

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Copyright © 2024 Author Champion Contested Wills

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