Defending a Will in Queensland
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If you're an Executor or Defendant defending a family provision claim or any other claim against the estate I will give you the best advice on how to deal with the claim to avoid the frustration of delays, huge legal costs and a disappointing ending.
At the end of a case legal costs become a very important issue and can amount to a very large proportion of a settlement. For more about legal costs give me a call.
What’s different in Queensland?
A major difference is the time in which a claimant must lodge a claim. In Queensland a claimant must notify the representative of the deceased estate of the intended claim within six (6) months of the death of the deceased and commence proceedings with nine (9) months from the date of death. Extensions of time are only permitted in exceptional circumstances.
Another difference in Queensland is the list of persons eligible to claim family provision. Parents and stepchildren of the deceased are specifically named eligible to claim. Parents and stepchildren under certain circumstances may also be successful in other States however are not specifically listed.
Another difference in Queensland is the court system providing for smaller estates to be heard in the District Court and larger estates heard in the Supreme Court. This system is also available in NSW and Victoria but is not utilised to the same extent.
Another difference in Queensland is in relation to a claimant being out of time for a family provision claim. Section 41 of the Queensland Succession act 1981 covers this situation and it is slightly different to that in New South Wales.
Four factors which can be relevant to the exercise of the discretion are
(a) whether there is an adequate explanation for the delay;
(b) whether there would be any prejudice to the beneficiaries;
(c) whether there has been any unconscionable conduct by the applicant; and
(d) the strength of the applicant’s case.”
Yet another difference in Queensland is in relation to the way matters are settled and whether or not the consent orders and agreements are required to be filed in to court. In New South Wales particularly at mediation when registrars are involved as mediators it is quite common to have the parties and their respective legal advisers sign the terms of settlement and consent orders and file the documents in to court.
In Queensland however the agreements and consent orders are not valid until I approved by a judge. It is not sufficient in Queensland to have a legal teams and conditions in an agreement simply signed by the parties and then filed in court.The settlement agreement is not binding until approved by a judge.
Queensland law is yet different again when it comes to the situation where a climate all family provision dies before the case has been finalised. In New South Wales the claim dies with the claimant. However in Queensland whilst the claimant itself dies with the claimant, legal costs are recoverable and possibly some other expenses incurred in the litigation after the death of the claimant.
Queensland differs yet again in relation to family provision claims. The eligibility criteria is different and the law whilst very similar is worded differently. The most important points as follows.
Child means, in relation to a deceased person, any child, stepchild or adopted child of that person.
Dependant means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death being;
(a) a parent of that deceased person; or
(b) the parent of a surviving child under the age of 18 years of that deceased person; or
(c) a person under the age of 18 years.
Meaning of stepchild
A person is a stepchild of a deceased person for this part if;
(a) the person is the child of a spouse of the deceased person; and
(b) a relationship of stepchild and step-parent between the person and the deceased person did not stop under subsection
(2) The relationship of stepchild and step-parent stops on;
(a) the divorce of the deceased person and the stepchild’s parent;
(b) the termination of the civil partnership between the deceased person and the stepchild’s parent; or
(c) the ending of the de facto relationship between the deceased person and the stepchild’s parent.
To remove any doubt, it is declared that the relationship of stepchild and step-parent does not stop merely because;
(a) the stepchild’s parent died before the deceased person, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died; or
(b) the deceased person remarried, entered into a civil partnership or formed a de facto relationship after the death of the stepchild’s parent, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died.
In this section; termination, of a civil partnership, means termination under the Civil Partnerships Act 2011.
Estate of deceased person liable for maintenance
(1) 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.
(1A) However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenanceor support and the circumstances of the case, that it is proper that some provision should be made for the dependant.
The court may;
(a) attach such conditions to the order as it thinks fit; or
(b) if it thinks fit by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or
(c) refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.
The incidence of the payment or payments ordered shall, unless the court otherwise directs, fall rateably upon the whole estate of the deceased person or upon so much thereof as is or may be made directly or indirectly subject to the jurisdiction of the court.
The court may, by such order or any subsequent order, exonerate any part of the estate of the deceased person from the incidence of the order, after hearing such of the parties as may be affected by such exoneration as it thinks necessary, and may for that purpose direct the personal representative to represent, or appoint any person to represent, any such party.
The court may at any time fix a periodic payment or lump sum to be paid by any beneficiary in the estate, to represent, or in commutation of, such proportion of the sum ordered to be paid as falls upon the portion of the estate in which the beneficiary is interested, and exonerate such portion from further liability, and direct in what manner such periodic payment shall be secured, and to whom such lump sum shall be paid, and in what manner it shall be invested for the benefit of the person to whom the commuted payment was payable.
Where an application has been filed on behalf of any person it may be treated by the court as, and, so far as regards the question of limitation, shall be deemed to be, an application on behalf of all persons who might apply.
Other Differences in Queensland
Hereunder I will summarise various facets of the law of Defending a Will in Queensland which differs slightly from other Australian States. As I have mentioned in other pages on this site the law is much the same in all Australian States however the specific wording in the legislation of each State can be a trap for lawyers and their clients when defending a will in Queensland. Judges in court proceedings are very often limited in their determination of a case by the precise wording of the legislation of a particular state.
Give me a call anytime. I will personally answer the phone. I'm happy to discuss with you the three (3) most common mistakes made by will dispute contestants that can lead to long delays, huge legal cost and an unhappy end. No cost, no obligation. Choose me to represent you or not, at least you will have the knowledge to start on the right track.
Eric Butler: 1800 960 156