A ‘family provision application’ (FPA) is an application to the Court made by certain eligible person/s who have not been adequately provided for in a Will.

In Queensland, a FPA can be made against an estate under Part 4 of the Succession Act 1981 (Qld) (Act).

An eligible person can make the application where the deceased’s Will does not provide them with adequate provision for their ‘maintenance and support’.

Who are considered eligible to make an application for provision from a Will?

In Queensland, a person who is eligible to make an application for provision against a deceased’s estate, includes the deceased’s spouse, child, step-child or dependent.

Who constitutes as a ‘child’ of the deceased?

Sometimes I receive questions from people on whether they fit the definition of a ‘child’, in respect to eligibility when making an FPA claim.

Under section 40 of the Act, a child of the deceased includes:

1. a biological child;
2. step-child; and
3. adopted child. 

I have commented further to these three categories below:

Biological child

To be a biological child of the deceased, the deceased must be either your biological mother or father. 

Step-child

A person is considered a step-child of the deceased, if they are:

1. the child of a spouse married to the deceased or in a de facto relationship with the deceased; and
2. the relationship between the spouse and the deceased has not ended by divorce before death (or separation in the event it was a de facto relationship).

For married couples, it is important to note that the step-child/step-parent relationship will continue, even if your spouse and you separate. The step-child/step-parent relationship will only cease if you are divorced at the time of death.

In other words, a person will continue to be a step-child of the deceased if their parent (the spouse of the deceased) dies before the deceased – provided that they were still married at the time of death and the relationship had not been terminated by divorce.

With de facto couples, the step-child/step-parent relationship ceases upon separation. The step-child will remain eligible to claim against their mother/father’s partner’s estate, if they were still in a de facto relationship at the time of death.

Therefore, as soon as people separate, I recommend they make revisiting their estate plan a priority to mitigate the risks of potential claims from eligible applicants (including their ex-partner/spouse and stepchildren).

For example:

• Jack is married to Jill, and Jack has one child from a previous relationship – his son, Junior.
• Jack passes whilst he is married to Jill.
• Junior will always remain Jill’s step-child.
• In the event of Jill’s death, Junior will still be eligible to make an application against Jill’s estate (even after 10 years following Jack’s death and even if Jill has subsequently re-married). 

Adopted children

In respect of an adopted child, if the adoption occurred in Australia, then the adoption must have been formalised in accordance with the laws of the state or territory in which the adoption took place. 

If the adoption occurred overseas, then the adoption must have been formalised in accordance with the laws of that particular jurisdiction.

I consider myself a child of the deceased and eligible to bring a claim – what do I do now?

It is important for you to remember that there are prescribed time limits within which you must bring your claim against the estate.

In Queensland, that is:

• 6 months form the date of death to provide notice to the executor/administrator of your intention to make a claim; and

• 9 months from the date of death to file your application with the appropriate Court.

When an application is made, the Court takes a two-step approach:

1. whether there has in fact been inadequate provision made for the applicant according the reasonable expectations of the community; and  
2. what provision should be made for the applicant. The factors that are taken into account include:

• the ability of the applicant to meet their own financial responsibilities;
• the amount which is necessary for their maintenance and survival;
• the size of the estate;
• any competing claims upon the estate;
• the standard of living of the applicant;
• the relationship between the applicant and the deceased;
• the manner in which the applicant conducted themselves during the deceased’s life; and
• the deceased’s wishes.

It is important to remember that it will be based on the applicant’s need for provision from the deceased’s estate for their maintenance and support – it is not a chance to re-write the Will.

Seek advice – earlier the better

If you have questions on whether you would qualify as a potential claimant, or you are a legal representative (i.e. executor) of an estate where there is a risk of an application being made against the estate, please feel free to contact me for advice on your position and help guide you through the claim process.