Family Provision Claims

“ Contents ”

“ Challenging the validity of a will A challenge to a will is a different issue to a family provision claim. ”

“ A challenge to a will is a different issue to a family provision claim. Challenging a will questions its validity, on the basis of 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 ... ”

“ Only property that falls into the estate in the jurisdiction of the claim can be affected by an FPA. Generally that is all immovable property within Queensland. The court’s power to deal with immovable property is governed by the law of lex situs - the law of the place in which property is ... ”

“ Inter vivos disposals: Queensland does not have a notional estate provision. The court does not have jurisdiction to claw back property disposed of during the deceased’s lifetime, even if it is done to defeat an FPA claim - re Richardson [1920] SALR 24, re Thomson [1933] NZLR 59. However, there may ... ”

“ 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. Definitions of eligible applicants ”

“ 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) and 44(4). If the personal representative has distributed the ... ”

“ 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 requires the claimant to demonstrate need. Need is assessed by an examination of their personal and financial ... ”

“ Uniform Civil Procedure Rule 689 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 losing party to convince the ... ”

“ If you have been unable to negotiate a settlement with the claimant, or your client after receiving your advice on the claimant’s prospects takes the view that they will not settle, the claimant will commence proceedings seeking orders for provision and costs to be paid by the estate. Always ... ”

“ Relevant factors in assessing a claim include: The size of the 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: ”

“ For the purposes of an FPA, the court will not disturb a distributed estate provided the distribution was properly made: s 44(3). CF alternative causes of action such as promissory estoppel, constructive and/or resulting trust claims. Refer to the discussion on Time Limits above. ”

“ The court has a wide discretion as to the manner in which provision can be made. Provision can be made by way of: a lump sum ”

“ Applications can be settled in a number of ways but have different tax implications. Applications settled after proceedings are commenced can be disposed of by the making of consent orders for provision or further provision in favour of the applicant from the estate. Any such order takes effect as ... ”

“ 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) SA. In determining inadequacy the court looks to what it can identify as necessary for a particular claimant’s proper maintenance and support. Adequacy is ... ”

“ 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 section 44(3)(b). There is no ... ”

“ The proceedings for a family provisions application are commenced by filing an Originating Application, and supported by an affidavit. The affidavit must depose to facts sufficient to support a prima facie entitlement. Practice Direction 8 of 2001 sets out the process of commencing the proceedings. ”

“ Alternative dispute resolution is mandatory in family provision applications. Chapter 9, Part 4 of the Uniform Civil Procedure Rules 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 appointed by ... ”

“ If mediation is unsuccessful, the mediator will file a form with the court confirming that is the case. Supreme Court Practice Direction 9 of 2010 sets out the process of setting a matter down for trial. Practice Direction 14 of 1999 requires the legal representative to provide a written outline of ... ”

“ The effect of orders made under the Succession Act is that it exempts the parties from stamp duty where otherwise dutiable property is transferred in accordance with the terms of the order. This does not extend to deeds of settlement that are not court orders. ”

“ UCPR 689 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 losing party to convince the court that he or she should ... ”

“ The parties to an FPA do not have an as-of-right entitlement to disclosure. The obligation to give disclosure only applies to a proceeding started by application if the court directs: UCPR 209(1)(c). The applicant must seek the inclusion of directions for disclosure in the consent directions; seek ... ”

“ The practice directions have significantly reduced the number of cases in this area that fail to reach resolution and proceed to a final hearing. Necessity for a grant of probate or letters of administration for the purpose of the proceedings ”

“ Where the claim does not exceed $750,000, the originating application should be filed in the District Court. Claims in excess of $750,000 must be brought in the Supreme Court. Practice Direction 8 of 2001 issued out of the Supreme Court is identical in almost all respects to Practice Direction 8 of ... ”

“ There are a variety of matters that both the applicant and respondent should investigate. These can either provide a defence to a claim or an alternative cause of action. Disentitling conduct ”

“ Contents ”

“ Challenging the validity of a will A challenge to a will is a different issue to a family provision claim. ”

“ A challenge to a will is a different issue to a family provision claim. Challenging a will questions its validity, on the basis of 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 ... ”

“ Only property that falls into the estate in the jurisdiction of the claim can be affected by an FPA. Generally that is all immovable property within Queensland. The court’s power to deal with immovable property is governed by the law of lex situs - the law of the place in which property is ... ”

“ Inter vivos disposals: Queensland does not have a notional estate provision. The court does not have jurisdiction to claw back property disposed of during the deceased’s lifetime, even if it is done to defeat an FPA claim - re Richardson [1920] SALR 24, re Thomson [1933] NZLR 59. However, there may ... ”

“ 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. Definitions of eligible applicants ”

“ 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) and 44(4). If the personal representative has distributed the ... ”

“ 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 requires the claimant to demonstrate need. Need is assessed by an examination of their personal and financial ... ”

“ Uniform Civil Procedure Rule 689 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 losing party to convince the ... ”

“ If you have been unable to negotiate a settlement with the claimant, or your client after receiving your advice on the claimant’s prospects takes the view that they will not settle, the claimant will commence proceedings seeking orders for provision and costs to be paid by the estate. Always ... ”

“ Relevant factors in assessing a claim include: The size of the 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: ”

“ For the purposes of an FPA, the court will not disturb a distributed estate provided the distribution was properly made: s 44(3). CF alternative causes of action such as promissory estoppel, constructive and/or resulting trust claims. Refer to the discussion on Time Limits above. ”

“ The court has a wide discretion as to the manner in which provision can be made. Provision can be made by way of: a lump sum ”

“ Applications can be settled in a number of ways but have different tax implications. Applications settled after proceedings are commenced can be disposed of by the making of consent orders for provision or further provision in favour of the applicant from the estate. Any such order takes effect as ... ”

“ 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) SA. In determining inadequacy the court looks to what it can identify as necessary for a particular claimant’s proper maintenance and support. Adequacy is ... ”

“ 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 section 44(3)(b). There is no ... ”

“ The proceedings for a family provisions application are commenced by filing an Originating Application, and supported by an affidavit. The affidavit must depose to facts sufficient to support a prima facie entitlement. Practice Direction 8 of 2001 sets out the process of commencing the proceedings. ”

“ Alternative dispute resolution is mandatory in family provision applications. Chapter 9, Part 4 of the Uniform Civil Procedure Rules 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 appointed by ... ”

“ If mediation is unsuccessful, the mediator will file a form with the court confirming that is the case. Supreme Court Practice Direction 9 of 2010 sets out the process of setting a matter down for trial. Practice Direction 14 of 1999 requires the legal representative to provide a written outline of ... ”

“ The effect of orders made under the Succession Act is that it exempts the parties from stamp duty where otherwise dutiable property is transferred in accordance with the terms of the order. This does not extend to deeds of settlement that are not court orders. ”

“ UCPR 689 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 losing party to convince the court that he or she should ... ”

“ The parties to an FPA do not have an as-of-right entitlement to disclosure. The obligation to give disclosure only applies to a proceeding started by application if the court directs: UCPR 209(1)(c). The applicant must seek the inclusion of directions for disclosure in the consent directions; seek ... ”

“ The practice directions have significantly reduced the number of cases in this area that fail to reach resolution and proceed to a final hearing. Necessity for a grant of probate or letters of administration for the purpose of the proceedings ”

“ Where the claim does not exceed $750,000, the originating application should be filed in the District Court. Claims in excess of $750,000 must be brought in the Supreme Court. Practice Direction 8 of 2001 issued out of the Supreme Court is identical in almost all respects to Practice Direction 8 of ... ”

“ There are a variety of matters that both the applicant and respondent should investigate. These can either provide a defence to a claim or an alternative cause of action. Disentitling conduct ”