Family Provision Claims: Separated but not divorced!

Family Provision Claim Queensland

Family Provision Claims: Separated but not divorced! One way to leave your estate vulnerable to a claim is not getting a divorce.

Real Life Example!

Let’s give you a real life example. Recently, we saw some clients to draw up their wills. They were in a de-facto relationship for over 30 years. The de facto husband had been previously married and had children from that previous marriage. When we asked him about when he got divorced, he looked a bit shocked and had a few minutes to think about it and realised he’d never got divorced. So, we promptly proceeded to get that divorce application underway. If we hadn’t done this, his estate would have been left open for a family provision claim after he dies. So, this is a really good example of why you need to make sure that if you’re separating, you actually do get a divorce at some point.

Whilst not mandatory in Australia after separation to actually ever divorce, it is important for your estate that you do get a divorce. Otherwise, you’re opening yourself up to a family provision claim after you die in Queensland. Below we discuss more about family provision claims.

Now what is a family provision claim?

A family provision claim allows a person to legally challenge a person’s will/ or the rules of intestacy after a person has died. This is as a result of someone believing they have not been adequately provided for in the estate. By making a family provision claim, it allows certain people (family members or dependents) to seek a greater share of the assets of the deceased in order to provide for their needs, if they believe that the will hasn’t adequately provided for them.

Where is the legal framework for these claims in Queensland?

The legal framework for these claims in Queensland is outlined in the Succession Act 1981.

What are the reasons someone can make a claim?

The main reason is that adequate provision for the claimants proper maintenance and support has not been met by the will or the rules of intestacy. Therefore, what is required for their daily living needs has not been adequately provided for by the will or the rules of intestacy.

However, not everyone can challenge a deceased person’s will. Who can challenge a deceased person’s estate is outlined next.

Who can challenge a deceased person’s estate? Key aspects of a family provision claim in Queensland:

The key factor is that not everyone is eligible to make a Family Provision Claim. Who can normally make a claim includes:

Spouses (including de facto and registered partners),
Children (including adopted children and step-children), and
Certain dependents (like parents) are considered eligible.

Strict Time limits apply for family provisions claims!

The important dates to understand in relation to the strict time limits are as follows.

Notice of an intended application must be given within 6 months of the date of death, and
The actual application must be filed within 9 months.

Which Court does a claimant make the claim in, in Queensland?

The application for the claim is made to the Supreme Court of Queensland. Once the claim is made, the Court will make an assessment as to whether there has been adequate provision in the will or not. It will also review whether any additional provision should be made.