29 Oct Can Queensland wills be challenged?
A local barrister recently published a paper which is of assistance for anyone wanting to understand Family Provision Applications. Family Provision Applications come about as a result of section 41 of the Succession Act Queensland. Although this article explains section 41, first, please read the section in full: “If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.” You should notice that the application may be made, if a deceased person does not adequately provide for a spouse child or dependant. There are two important aspects to a Family Provision Application:
- a failure to adequately provide and
- only a spouse, child or dependant is entitled to claim.
The nature of a Family Provision Application is explained in plain language in Mr Wilson-Smith’s paper. If you require further explanation please contact us.
James Wilson-Smith commenced his legal practice in England in 1996. He was called to the Bar in London in 1999. He joined the bar in Queensland in August of 2011. James has chambers in Maroochydore and practices predominantly in the areas of estate and succession law, family and commercial litigation.
We have extracted one part of the paper which deals with the question of how to measure whether adequate provision has been provided. The whole of the paper can be viewed here. We are very grateful to James Wilson Smith for allowing us the opportunity to publish his enlightening paper.
So how can a testator, executor or beneficiary determine whether the gift left to a child spouse or dependant is adequate? James Wilson Smith provides the following summary of the legal position:
The concepts of “adequate provision” and “proper maintenance and support” are essentially relative and will vary with each case.
In Singer v Berghouse  HCA 40, Mason CJ, Deane and McHugh JJ explained the process involved in the determination of an application for provision under the Act. At paragraph  “The first question is, was the provision (if any) made for the applicant ‘inadequate for [his or her] proper maintenance, education and advancement in life?’
The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc were explained in Bosch v Perpetual Trustee Co Ltd ( AC at 476). The determination of the first stage in the two–‐stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance; and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance.
Take, for example, a case like Ellis v Leeder ((1951)  HCA 44; 82 CLR 645), where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.”
The courts have adopted this two–‐stage process for determining the applications. First the court will determine the jurisdictional issue, that is, the jurisdiction of the court only arises if and when the applicant satisfies the court that adequate provision has not been made for him or her. If the jurisdictional hurdle is overcome the court moves onto the second stage and considers whether an order will be made.
In conducting the assessment the court will consider all the relevant circumstances but will have particular regard to:
- the applicant’s financial position;
- the size and nature of the deceased’s estate;
- the totality of the relationship between the applicant and the deceased; and
- the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination as to whether adequate provision has been made for proper maintenance will be made with reference to “the postulate of a wise and just testator or testatrix.”
The point in time for that determination is with reference to the circumstances as they existed date of the testator’s death “But advantage may be taken of hindsight so long as the occurrences fall within the range of reasonable foresight”
If you wish to read the full paper please follow this link to the full paper by James Wilson- Smith Barrister