Inheritance claims and contesting a will

Who can make a family provision claim

Section 41 of the Succession Act 1981 (Qld) allows the court to order provision out of an estate where adequate provision has not been made for the proper maintenance and support of an eligible applicant. Queensland's eligibility list is narrower than New South Wales, which is why advice from another state can mislead.

• A spouse. A husband or wife, a de facto partner who lived with the deceased on a genuine domestic basis within two years before the death, a registered civil partner, and in some cases a former spouse who was receiving or entitled to receive maintenance.
• A child. Including an adopted child and a stepchild, of any age. An adult child is eligible.
• A dependant. A person who was being wholly or substantially maintained by the deceased at the date of death and who is a parent of the deceased, a parent of a surviving child of the deceased under 18, or a person under 18.

Siblings, nieces, nephews, friends and carers who do not fit those categories are not eligible in Queensland, however unfair the will feels. A different kind of claim, such as one based on a promise relied on to your detriment, may still exist and should be assessed separately.

The deadlines, and why they are the whole ball game

Two dates, both running from the date of death and not from the date you found out.

1. Six months: notice. Written notice of an intention to apply must be given to the personal representative. Notice alone does not start proceedings, but it stops the executor from safely distributing the estate.
2. Nine months: filing. The application must be filed in the Supreme Court or District Court of Queensland within nine months of death.

Under section 44 of the Succession Act, a personal representative who distributes the estate after the relevant notice period without notice of a claim is protected. Once the money is gone and the executor is protected, an extension of time is close to worthless because there is nothing left to make provision from.

The court can extend the nine month period under section 41(8). It weighs the length of and explanation for the delay, whether the estate has been distributed, prejudice to the beneficiaries, and the strength of the underlying claim. Do not plan around getting an extension.

What the court considers

The test is two stages. First, has adequate provision been made for the applicant's proper maintenance and support. If not, second, what provision ought to be made.

The court is not rewriting the will according to its own sense of fairness, and there is no formula. It weighs the applicant's financial position, needs and health, the size of the estate, the applicant's relationship with the deceased, contributions the applicant made to the deceased's welfare or estate, the competing claims of other beneficiaries, and any reasons the deceased gave for the disposition.

A statement of reasons left by the will maker carries weight but does not settle the question. Estrangement matters, and so does why the estrangement occurred and who caused it.

Most claims settle at a mediation before a hearing, which is usually the right result. Costs in estate litigation are substantial and they come out of the same estate everyone is arguing about.

Inheritances and separation

The other side of this topic. An inheritance you have received is property, and it goes into the pool in a family law property settlement. It is not quarantined, and there is no rule that inheritances are excluded.

What happens next is a question of weight. The court treats it as a financial contribution by the party who received it, and asks when it was received, how large it is relative to the pool, whether it was used for the family, and what has happened since. An inheritance received twenty years ago that paid off the family mortgage is deeply intermingled. One received a month before a hearing, after a long separation, is usually treated very differently.

An inheritance you expect but have not received is generally not property. It may still be relevant as a financial resource under the current and future circumstances step, particularly where the testator has died or lacks capacity to change the will.

If you want certainty about how a future inheritance is treated, that is what a binding financial agreement is for, and it should be dealt with at the same time as the estate planning rather than years afterwards.