A family provision claim is a legal action brought by someone looking for a share of a person’s deceased estate, when they believe they have not been adequately provided for.
Can a Will be contested?
There is no way to stop someone from contesting a Will or making a family provision claim in Queensland.
Anyone looking to make a family provision claim must prove the deceased person had a moral responsibility to make provision for them, and then also prove they have financial needs not being met under the existing Will.
If a claim ends up in court, the court’s primary question will be what a “reasonably minded testator” would have done in the same circumstances. And any claim will also be weighed against the entitlements of other claimants or beneficiaries.
Steps to help prevent family provision claims
What you can do to help prevent family provision claims, is to approach your estate planning in a certain way to minimise the chances of that happening.
To avoid disputes, it’s important to make adequate provision for anyone with a valid claim – this includes a spouse, partner, children or stepchildren, and anyone else being supported by the person prior to their death.
Make a clear, comprehensive note behind each bequest in the Will, so that anyone mentioned will understand why that particular amount or gift has been left to them.
Structure your assets
Make sure that major assets and bank accounts are jointly owned with the chosen beneficiary. That way, the property and bank accounts pass directly to the surviving person. You can also create a binding death benefit nomination, aimed at giving one person any life insurance or superannuation payouts. This means those funds are given directly to the beneficiary and are not included as an asset in the deceased estate.
You can also give gifts to family, friends and charities during your lifetime. However, this could affect tax liability and income support benefits, so it’s important to get financial advice before taking those steps.
It’s also possible to use a family trust to remove assets from your estate. You can still maintain control of the assets by acting as a trustee of the trust. Again, this has financial implications, so be sure to get the right advice before creating a family trust.
Deadlines for making a claim
In Queensland, any claimant to a Will needs to inform the executor of the estate in the six months following the person’s death. A family provision claim must be made in the nine months following the person’s death, unless the court gives permission for a special application. It’s unlikely a late application would be granted unless there are compelling reasons.
Seek professional help
The death of a loved one is an emotional time. And if you’re preparing your succession plans, the last thing you want to deal with is the thought of your family fighting over any assets.
The team at GLG Legal understands the complexities of succession law, making a Will, and Family Provision Claims. Make an appointment to see one of our experts today. Contact our office on: (07) 3161 9555 or email: info@glglegal.com.au