The most common form of contesting a will or estate is a claim for further provision, which is usually made by a family member close to the deceased who believes they have not been properly provided for. This claim is typically made by a child or spouse, but can also be made by financially dependent parents or a former spouse. In Queensland, this type of contested estate claim is called making a family provision application (FPA), while in other jurisdictions these claims are sometimes called ‘testator’s family maintenance’ applications.
It’s important to understand who is eligible to bring a claim and what factors determine the likely success or failure of that claim. If you can do that, you will be better placed to work out which legal pathway might be your best option for reaching resolution of your estate dispute without going to court.
Who can make a claim?
Each State sets out in its legislation who can make this type of claim. In Queensland, you must be an ‘eligible applicant’, meaning you share a close relationship with the deceased either as a spouse, child or dependant of the deceased. Although each of those terms has quite specific definitions, in general they cover the following people:
Spouse includes a heterosexual or same sex husband or wife (married or registered) or a de facto partner (as long as at the time of death they had been living with the deceased in a genuine domestic relationship for at least two years).
This will also cover an ex-spouse if they were receiving maintenance from the deceased, so long as they have not remarried.
Arguments over whether or not a partner was an ‘eligible’ de facto spouse are not uncommon. The courts have therefore established a list of factors to consider when assessing such a relationship. These are:
- The duration of the relationship,
- The nature and extent of any common residence,
- The existence of a sexual relationship,
- The degree of financial interdependence between the parties, and the extent to which one supported the other,
- The ownership, acquisition and use of property,
- Whether there were children from the relationship,
- How the partners shared household duties,
- The degree of mutual commitment and support, and
- The reputation and public aspects of the relationship.
Child includes any biological child, stepchild or adopted child of the deceased person (regardless of their age). In Queensland, as of June 2017, the stepchild of a de facto spouse is also now eligible.
Dependant includes any parent, a foster child or grandchild under the age of eighteen (18), or any ex-spouse if they are the other parent to a child of the deceased under eighteen (18) years – but only if those people were wholly or substantially financially supported by the deceased person.
Eligibility alone is not enough, you must show that you have need.
You may be entitled to bring an FPA, but being an eligible applicant is not in itself enough to guarantee a successful claim. The applicant will need to show not only that they have not been properly provided for, but also that they have need for the further provision they seek.
Generally, the spouse and infant children of a deceased person will be regarded as having a special need for provision.
Sometimes, adult children can also show they have a special need. Some reasons for this might include their contribution to the build-up of the estate, their mental or physical disability, being unable to secure employment, or needing assistance to support their own minor children if they don’t have the financial resources to care for them. Adult children have a higher likelihood of success in such claims where their needs are not competing with the needs of a spouse or minor children – where, for example, the estate is very large and can cover future life contingencies, or the estate was left to charities rather than other beneficiaries.
A divorced spouse might also show special need if he or she is the parent of the deceased’s children (particularly if those children are minors or financially dependent). However, if the divorce happened years before the death with a property settlement finalised, special need may not be able to be shown unless the spouse was receiving or entitled to receive ongoing financial maintenance.
It’s also important to realise that there may be more than one eligible applicant. Once one applicant files an application for further provision, all of the people who might be affected by the application must be notified. Other eligible applicants must be identified and given the opportunity to put in their own claims against the estate.
In most cases, each party making a claim will have their own lawyer representing them, and usually the solicitor acting for the personal representative will represent the interests of all other beneficiaries. In some cases, a litigation guardian is appointed to protect the interests of minor children or those who don’t have legal capacity due to a disability or ill health.
If you are the named executor, or the first person entitled to apply for a grant on intestacy, and you wish to make your own claim for further provision, then you should renounce your role and instead appoint an independent administrator (to manage the estate administration) or an administrator pendente lite (to act only for the purposes of the litigation).
At Resolve Estate Law we always encourage families to do whatever possible to resolve contested wills and estates matters without going to court. This not only saves massive legal costs but also family heartache. To find out more on how you can settle your estate dispute click here to get a copy of our free E-book ‘The 10-step plan to keep your estate dispute out of court’.
If you think that you may be eligible to make a claim for FPA or if you think such a claim might be made by someone against the estate give us a call, send us an email or click here to arrange your complimentary 15 minute call to discuss the steps you can take to resolve the claim without going to court.