A 'family provision application' (FPA) is a type of estate challenge that can be brought to dispute the contents of a person's Will after they die. An FPA is not the correct avenue to challenge the validity of a Will document. An FPA is usually filed where someone has been left nothing in a Will or they don't think they have been left enough.
In Queensland, an FPA can be made by a deceased person's spouse (including a de facto), children (including step-children and adopted children) and a very limited class of 'dependants'.
When the court hears an application, it will consider:
- whether the applicant is eligible to make a claim;
- whether the applicant has been properly provided for in the Will; and, if not,
- whether further provision should be given to the applicant, and if so, how much.
The third stage involves a consideration of many factors relating to the applicant, the deceased and the deceased's family generally.
When making orders for payment to successful FPA applicants in Queensland, the court can only access assets that form part of the deceased person's estate. For more information about this and the rules that apply in other states, see our article ' What assets can my Will deal with?'
Each FPA is different and the outcome will depend on the circumstances of each individual case.
There are very strict time limits that applicants must comply with if they want to make an FPA. If they do not, their interests will not be protected.
While all parties' costs of an FPA are often paid by the estate, this is not an absolute rule and in some circumstances, an applicant may be liable for all or some of their own costs, and even all or some of the estate's and other parties' costs.
Each state has different rules regarding eligibility to make a claim, the time limit to start your claim, the assets available and the factors that are taken into account. Therefore, it is important to check the relevant rules in each state.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
