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Family Provision Claims

QLD

This publication covers family provision claims in Queensland when acting for the plaintiff or the estate.

4 Matter Plans

Overview

The commentaries outline the three-stage process relevant to family provision claims. This enables practitioners to offer precise initial advice and manage a matter from negotiation through to settlement or hearing.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Also included are 101 Succession Answers (QLD) and 101 Subpoena Answers, which are useful reference guides.

Precedents in this publication include:

  • Suite of letters to the client and other relevant parties;
  • Offers of compromise and Calderbank offers;
  • Deed of settlement of a family provision claim;
  • Deed of family arrangement;
  • Brief to counsel with example content;
  • Necessary forms and precedents to file or respond to a claim
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4 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Family Provision Claims (QLD) - Acting for the Applicant
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Succession Answers (QLD)
    • Item icon 101 Subpoena Answers
    • Item icon 101 Costs Answers
    • Item icon Further information
  • Item icon Overview and limitation periods
    Legislative scheme Family provision claims are governed by Part 4 of the Succession Act 1981 and Chapter 15 of the Uniform Civil Procedure Rules 1999.

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Family provision claims - Acting for the applicant
    • Item icon To do list - Family provision claims
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Family provision claims - Acting for the applicant
    • Item icon Conflict of interest check
    • Item icon Initial letter to client enclosing costs agreement
    • Item icon Costs agreement - QLD
    • Item icon Abbreviated costs disclosure - Costs under $3000
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. Initial considerations and gathering information
    • Item icon Letter to potential claimant
    • Item icon Initial letter to executor OR administrator
    • Item icon Initial letter to estate solicitor
    • Item icon Challenging the validity of a will
      A challenge to a will is a different issue to a family provision claim. Challenging a will questions its validity, based on the testator’s capacity, for example. Such a challenge requires the claimant to have standing, as a person named in the will or a person entitled under intestacy laws if the ...

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    • Item icon Eligible persons
      The first issue to be determined is the eligibility of the person seeking further provision out of the estate. The Act enables an eligible person to apply for adequate provision out of the estate for that person’s maintenance and support.

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    • Item icon Time limits
      To protect the right to bring an application for provision out of the estate, the personal representative must be served with a written notice of intention to make an application within six months of the date of death. See ss 44(3) - 44(4). If the personal representative has distributed ...

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    • Item icon Relevant factors in assessing a claim
      Relevant factors in assessing a claim include:

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    • Item icon Estate
      The assets available to make provision for a claimant are confined to the estate of the deceased. Refer to discussions under Getting the matter underway, Applicable Property and Excluded Property. This means that certain assets would be unavailable, namely:

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    • Item icon Form of provision that may be awarded
      The court has a wide discretion as to the manner in which provision can be made. Provision can be made by way of:

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    • Item icon Merits of the application
      Once the question of eligibility has been determined the next enquiry is for the court to determine what an adequate provision is: s 41(1). In determining inadequacy, the court looks to what it can identify as necessary for a particular applicant’s proper maintenance and support. Adequacy is ...

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  • Folder icon C. Settling the matter
    • Item icon Settling the matter
      A claimant must first be an eligible person with a claim upon the testator’s bounty as discussed in Getting the matter underway. If the claimant is an eligible person, the Succession Act 1981 requires the claimant to demonstrate need. Need is assessed by an examination of their personal and ...

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    • Item icon Offers of settlement
      Rule 689 of the Uniform Civil Procedure Rules 1999 provides that costs follow the event unless the court considers another order is more appropriate. This provision was introduced in 1999 after the decision of Singer v Berghouse [1993] HCA 35 at 709 per Gaudron J. The onus is on the ...

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    • Item icon Example content - Offer to settle
    • Item icon Title (short)
    • Item icon Calderbank offer
    • Item icon Deed of settlement of a family provision claim
    • Item icon Clause - Consent order for provision to be made
    • Item icon Deed of family arrangement
    • Item icon Letter to client enclosing settlement deed
    • Item icon Authority to settle and receive
    • Item icon Direction to pay and authority to receive
  • Folder icon D. Going to court
    • Item icon Notice of application
      The claimant must put the estate on notice that they intend to make application to the court, within six months of the date of death, and once on notice the estate cannot be distributed without the executor being personally liable unless distributed in terms of s 44(3)(b). There is no ...

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    • Item icon Originating application
    • Item icon Clause - Originating application for provision
    • Item icon Clause - Affidavit supporting originating application
    • Item icon Letter to client enclosing draft affidavit
    • Item icon Letter to client enclosing affidavit for signing
    • Folder icon If required - Substituted service
      • Item icon Application
      • Item icon Clause - Application - Substituted service
      • Item icon Affidavit (Form 46)
      • Item icon Clause - Affidavit in support of application for substituted service
      • Item icon Minute of proposed order for substituted service
    • Folder icon If required - Litigation guardian
      • Item icon Consent of litigation guardian
    • Item icon Example content - Draft directions order
    • Item icon Letter serving documents on solicitor for the other side
    • Item icon Letter serving documents personally on executor OR administrator
    • Item icon Letter instructing process server
    • Item icon Affidavit (Form 46)
    • Item icon Clause - Affidavit of service
    • Item icon Letter to client after filing claim
    • Item icon Letter to client after first directions hearing
    • Item icon Letter to client enclosing estate affidavits
    • Item icon Letter to witness enclosing affidavit for signing
    • Item icon Mediation
      Alternative dispute resolution is mandatory in family provision applications. Chapter 9, Part 4 of the Uniform Civil Procedure Rules 1999 dictates the process for the conducting of such mediation. After all affidavits are filed, the matter is then set down for mediation. The mediator is ...

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    • Folder icon If required - Where settlement has been reached
      • Item icon s 312 Disclosure prior to settlement of litigious matter
      • Item icon Letter to registrar enclosing settlement documents
      • Item icon Order
      • Item icon Request for consent order of registrar
      • Item icon Clause - Consent order for provision to be made
      • Item icon Affidavit (Form 46)
      • Item icon Clause - Supporting affidavit by the claimant's solicitor
    • Item icon Request for trial date
    • Item icon Brief to counsel - Family provision claim
    • Item icon Example content - Brief to counsel - Family provision claim
    • Item icon Outline of submissions
    • Item icon Letter to other side's solicitor enclosing outline of argument
  • Folder icon E. Finalising the matter
    • Item icon Letter to client enclosing settlement deed
    • Item icon Authority to settle and receive
    • Item icon Direction to pay and authority to receive
    • Item icon Finalising the matter
      The estate solicitor frequently has a lot of work to do after a family provision claim is determined, but that is likely to be under the scope of the presumably separate retainer to act on the administration of the estate. The claim file will often need to await the sale of assets and the ...

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    • Item icon Letter to client finalising the matter
    • Item icon Letter to client finalising the matter - Successful application
    • Item icon Letter to client finalising the matter - No payment
    • Item icon Example invoice incorporating notification of client's rights - QLD
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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