Estate administration in Queensland typically involves collecting assets, paying off liabilities, and distributing property to beneficiaries in accordance with a…
When someone dies without a valid will in place (intestate), the distribution of their estate follows a legally defined formula. This allocation might not always reflect the deceased’s personal wishes or the unique circumstances of each family member. If you feel you deserve a greater share of the estate due to factors like financial hardship, caregiving responsibilities, or other special needs, there are legal avenues to seek a more equitable outcome.
Understanding the Concept of “Greater Need”
Even when a will exists, it’s possible for a family member to contest their share if they can show they have a greater need. This concept extends to intestate estates as well. The principle is that a deceased estate should provide “adequate provision” for the proper maintenance and support of eligible family members. Such a greater need might arise due to:
• Age and life stage (e.g., a very young child or a dependent elderly parent)
• Employment situation (e.g., recent job loss or inability to work)
• Caregiving responsibilities (e.g., caring for a disabled family member)
• Financial hardship (e.g., heavy debts or medical expenses)
What Is a Family Provision Application?
If you believe your share under intestacy laws is insufficient, you can make a legal request known as a Family Provision Application. This application asks the court to reconsider the estate’s distribution and potentially grant you additional funds or assets. Important points include:
• You can submit a Family Provision Application even if the deceased died intestate.
• Such an application can be made on your own behalf or on behalf of someone else who cannot apply themselves, such as an underage child.
• The court reviews each application individually, assessing the applicant’s financial, personal, and family circumstances.
Who Can Apply?
Not everyone related to the deceased is automatically entitled to apply for a greater share. Generally, only those individuals who fall within certain categories can submit a Family Provision Application:
• Spouses: Includes de facto and registered partners, as well as same-sex partners who meet the legal criteria.
• Children: This includes biological children, adopted children, and sometimes stepchildren, depending on the rules in your jurisdiction.
• Dependants: Individuals who were substantially supported or maintained by the deceased, such as a grandchild or niece/nephew who relied on the deceased for financial support.
Proving “Inadequate Provision”
To succeed in a Family Provision Application, the applicant must demonstrate that the current distribution of the estate fails to make “adequate provision” for their proper maintenance and support. Factors the court may consider include:
• The applicant’s current and future financial needs
• Their level of dependence on the deceased
• The size and nature of the estate’s assets
• The relationship between the applicant and the deceased
• Any existing commitments the deceased had to provide for certain family members
Practical Scenarios and Examples
• A recently widowed spouse who receives a minimal share under intestacy laws might argue their reduced earning capacity and ongoing care for the couple’s young children warrant a larger portion of the estate.
• An adult child with a disability, financially dependent on the deceased, might seek greater provision to cover long-term medical or living expenses not adequately met by the standard distribution.
Seeking Professional Guidance
Navigating a Family Provision Application can be complex. If you believe you have grounds to dispute an intestate distribution, consider seeking professional advice.
• Estate Lawyers: Specialists like QLD Estate Lawyers (QEL) can help you understand the criteria for a successful application, guide you through the process, and represent your interests.
• Financial Advisors & Accountants: Offer insights into financial planning, tax considerations, and long-term support needs that may strengthen your case.
• Counsellors or Mediators: If disputes arise among family members, mediation services can help reach a mutually acceptable arrangement without resorting to a court battle.
Additional Resources
• Check your state or territory’s legislation for the specific criteria and time limits governing Family Provision Applications. In Queensland, the Succession Act 1981 (Qld) sets out the relevant provisions.
• Visit your local court’s website or the Queensland Government’s Wills & Estates information page for guidelines, forms, and details on how to lodge an application.
By understanding the option to file a Family Provision Application, eligible spouses, children, or dependants can explore their legal rights when they feel that the intestate distribution falls short of their needs.