Eligibility to seek further provision from an estate

Monday, April 9, 2018

Quinn & Scattini Lawyers’ Wills & Estates Team regularly represent clients who want to contest what they are receiving under a will, or who want to contest the share of the estate they are receiving under the rules of intestacy when the deceased person has not made a will.

The law

Section 41 of the Succession Act 1981 (“the Act“) provides that if a person dies, with or without a will, and adequate provision is not made for the proper maintenance and support of the deceased’s spouse, child or dependant, then the court may, in its discretion, on application by or on behalf of the spouse, child or dependant, order that provision be made out of the deceased’s estate for the spouse, child or dependant.

Who can make an application?

It is important to note the three categories of persons who are entitled to make an application under section 41.  These are “spouse”, “child” and “dependant” of the deceased person.

So a person wanting to apply for further provision from a deceased person’s estate must be a spouse, child or dependant of the deceased person.

The spouse

The Act defines “spouse” as the husband, wife, de facto partner or registered partner of the deceased.  In respect of a de facto partner, the deceased and the de facto partner must have been living as a couple on a genuine domestic basis.  In deciding this, any of their circumstances may be taken into account, including whether they were living in a common residence, the length of their relationship, whether or not a sexual relationship existed, the degree of financial dependence or independence, their ownership and use of property, their commitment to a shared life, the care and support of children, the performance of household tasks and the perception of their relationship by members of the public.  It is also necessary that the de facto couple has lived in a relationship for a continuous period of at least two years which only ended on the death of the deceased person.

The child

The Act defines “child” in relation to a deceased person to mean any child, stepchild or adopted child.

The dependant

The Act defines “dependant” in relation to the deceased person as being any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by the deceased at the time of the deceased’s death and who is:

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

There are other factors which are relevant in this type of application, such as the nature of the relationship between the deceased person and the applicant, and the financial circumstances of the applicant.

Time limits apply

An eligible person wanting to make an application for further provision from a deceased person’s estate in Queensland must give notice of their intention to the executor within six months after the date of death, and must file their application in court within nine months after the date of death.

If you want to make an application for further provision from a deceased person’s estate, you should contact Quinn & Scattini Lawyers promptly.

How we can help

Q&S’s expert will dispute lawyers are experts in all types of will and estate litigation. Q&S’s expert lawyers will advise and represent you in all court proceedings, mediations and negotiations regarding deceased estates.

Why choose us?

You will be talking to a real expert, local to you. You will not be treated like a number, but as a real person, and a person going through a difficult and stressful experience. Get expert advice, not just what you want to hear, in language you can understand, not legal jargon.

Office locations

Q&S’s expert probate and administration lawyers are available at any of Q&S’s seven office locations.

Brisbane CBD | Beenleigh | Caboolture | Cleveland | Gold Coast | Ipswich | Jimboomba

Still need answers?

Submit an online enquiry below or speak to an expert will/estate dispute and litigation lawyer on 1800 999 529.

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