Contesting a Will with Family Provision Applications

Family Provision Application

Contesting a will is normally done by filing a Family Provision Application.  But, this is different from contesting that the will was not validly made.

A Family Provision Application is an application by a relevant person seeking a further portion of the deceased person’s estate then they were allocated under the will.  The claim is based upon the premise that the deceased person did not make “adequate provision” for the applicant’s “proper maintenance and support”. Considerations also apply from state to state as each state has different laws and requirements in relation to contesting a will.

Who Can Contest A Will?

Any of the following people can contest a will:

  • A Spouse (husband/wife, de facto partner, divorced partner who has not remarried and was receiving a benefit from the deceased at his/her death)
  • Children (biological, adopted or step-child)
  • Dependent ( a person who was being wholly or substantially supported by the deceased at the deceased’s death, being:
    • A parent of the deceased person;
    • A parent of a surviving child under the age of 18 years of the deceased person;
    • A person under the age of 18 years.

Time Limit

In order to contest a Will a person must provide notice to the executor of their intention to contest a will within 6 months from the date of the deceased’s death.

The application must be filed within 9 months from the date of death.

Basis for Contesting a Will

In order to be successful at contesting a Will a person will need to show the following:

1. The deceased person has failed to make adequate provision for the proper support or maintenance of the Applicant.

This means that a person will need to show the court that they have a greater need for more assets than was provided for in the Will at the time of death.

2. If the court finds that adequate provision should have been made then the court will determine what if any provision should be made for the applicant.

In other words, the court will look at the applicant’s personal financial circumstances and consider whether they are in need of support.

In determining the above the court take into account the following factors:

  • The size of the estate
  • The Applicant’s financial position, age and health
  • Relationship between the Applicant and the deceased
  • Any support given by the deceased
  • Any discussions regarding intention within the will
  • Any disproving conduct on the part of the Applicant

Whether you are seeking advice on contesting a will or you are defending an application, Queensland Law Practice can assist with walking you through the process and court procedure.