EVERYTHING YOU NEED TO KNOW ABOUT CONTESTING A WILL QLD BY A FAMILY PROVISION APPLICATION (FPA)

There are various ways a person can contest a Will in Queensland. The most common way a person contests a Will in Queensland is by making a Family Provision Application (“FPA”) against the Estate of the deceased.

Our expert Estate lawyers have experience in representing both Applicants and Executors in FPA claims. If you are someone who has been left out of a Will or believe you have not been adequately provided for in a Will, we can help you. We also help Executors who have been notified of an FPA claim. No matter who you are, our goal is to achieve you the best outcome. We are a client-focused law firm and aim to achieve clients timely and cost-effective resolutions to their matters. 

Call us today toll free on 1800 529 000 and speak to one of our expert Estate lawyers today about your situation. We are here to help you.

COMMON QUESTIONS FOR FAMILY PROVISION APPLICATIONS

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What does it mean to contest a will in Queensland by a Family Provision Application (“FPA”)?

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Who can contest a Will in Queensland by an FPA?

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How long do I have to contest a Will in Queensland by FPA?

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What things does a Court consider when someone is contesting a Will in Queensland by a Family Provision Application?

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Who pays the legal costs of a Family Provision Application?

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If I am contesting a Will in Queensland by a Family Provision Application will I have to go to trial?

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If you need help with a Family Provision Application, our expert Queensland FPA Lawyers are here to help.

Need help with an FPA claim? Call our FPA Queensland Lawyers today on 1800 529 000 or complete the form below.

What does it mean to contest a will in Queensland by a Family Provision Application (“FPA”)?

A Family Provision Application is an application made to the Supreme Court of Queensland under Part IV of the Succession Act 1981 (Qld) (“the Act”). There are generally two scenarios where persons make FPA claims:

1. The person was left out of the Will altogether, and they are seeking to be given something from the deceased’s Estate; or

2. The person is gifted something under the Will, but they are seeking more than they have been gifted.

 

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Who can contest a Will in Queensland by an FPA?

The law specifies who can contest the Will of a deceased person in Queensland. The person must be an “eligible person” for family provision.  There are three categories of persons who can make a Family Provision Application in Queensland:

 

Category 1 – The spouse of the deceased. This can include a de facto spouse, and/or a former spouse.

Category 2 – A child of the deceased. This includes children who are step-children or legally adopted children.

Category 3 – A dependant of the deceased. The law says a dependant is a person who is wholly or substantially maintained or supported by the deceased at the time of the deceased’s death who is

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

 

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How long do I have to contest a Will in Queensland by FPA?

 

In Queensland there are strict time limits to contest a Will by a Family Provision Application. If you are thinking of making an FPA, we strongly recommend you get advice from a lawyer as soon as possible.

There are two important time limits in Queensland:

  • Notifying the Executor of the Deceased’s Estate

If you want to contest a Will in Queensland by a Family Provision Application (”FPA”), you must give notice to the Executor. The notice is of your intention in making an FPA. This notice must be given to the Executor within six months of the deceased’s death, and it must be in writing.

  • Filing Your Application for an FPA In The Court

The second time limit, is within nine months of the deceased’s death you must file your application in the Supreme Court of Queensland or the District Court of Queensland. This is known as the limitation period.

What happens if you miss the nine-month time limitation?

If you do not file your application within nine months of the deceased’s death, you may make an application “out of time”. Such an application is at the discretion of the Court (the Court decides if they will let you file out of time) and there are no guarantees they will let you file out of time.  Things relevant to such an application being granted will depend on:

  • the duration of the delay.
  • the reason for the delay by the Applicant.
  • if the Estate has already been distributed.
  • If there was any unconscionable conduct by the Applicant.

 

Return to questions

What things does a Court consider when someone is contesting a Will in Queensland by a Family Provision Application?

 

The Succession Act does not provide a list of things a Court must consider when determining an FPA claim. However, case law provides guidance to Courts on the factors relevant to determining an FPA, these include:

  • Financial position of the Applicant. This includes the Applicant’s current needs and ongoing financial needs.
  • If the Applicant receives financial support from anybody else.
  • If the Applicant financially supports anyone.
  • Any financial responsibility of the deceased for the Applicant.
  • The health of the Applicant (are they in good health or have ongoing health problems).
  • The Applicant’s age.
  • The size (value) of the Estate.
  • Any contributions by the Applicant towards the acquisition, conservation or improvement of the deceased’s Estate.
  • Any contributions the Applicant made towards the welfare of the deceased.
  • Competing claims of any beneficiaries under the Will or other eligible FPA Applicants – i.e. the financial position and personal circumstances of the other beneficiaries or FPA applicants.
  • The relationship between the Applicant and deceased, including the duration of the relationship.
  • Any provision made for the Applicant from the deceased’s Estate.
  • Any matter the Court considers relevant.

 

Return to questions

Who pays the legal costs of a Family Provision Application in Queensland?

In Queensland, if you have a trial for a family provision application, the awarding of costs is at the discretion of the Court. This means it is up to the Court to decide who will bear the payment of the legal costs of the parties. If you are successful in your application to the Court, then you could expect some, if not all of your legal costs to be paid by the other party.

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If I am contesting a Will in Queensland by a Family Provision Application will I have to go to trial?

Most FPA claims do not go to trial, many resolve at a compulsory mediation.

Return to questions

CALL OUR FPA QUEENSLAND LAWYERS TODAY

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