Can step children and grand children contest a Will?
People are often concerned about family members making a claim against their estate if they do not leave something to them under their Will.
In Queensland, the Succession Act 1981 allows eligible people to make a claim against the deceased’s estate if they were not adequately provided for in a person’s Will or under the laws of intestacy. The intestacy laws state how a person’s estate Will be divided if they don’t have a valid Will in place or will not cover part of their estate. So can step children and grand children contest a Will?
Who can make a claim?
A family provision claim questions the fairness of Will’s provisions. To make a claim, the person challenging must be classed as an eligible person under the legislation, such as a spouse, child or dependant of the deceased. They must also demonstrate the need for provision from the estate and not adequately provided for under the Will.
Definition of Child
Under the legislation, the term “child” includes any child, stepchild or adopted child of the deceased person. The term “step child” is further defined as a child of a spouse of the deceased, and a relationship of stepchild and step-parent existed. Such relationship is deemed to stop upon the divorce, termination of a civil partnership or de facto relationship. However, such a relationship does not stop merely because the stepchild’s parent died, or the deceased person remarries or enters a new relationship after their death, provided that their relationship continued until that parent’s death.
Definition of Dependant
Whilst the term grandchild is not defined in the legislation, a grandchild or any other person classed as a “dependant” could also make a family provision claim. Such person must have been wholly or substantially maintained or supported by the deceased at the time of their death and either be a parent of the deceased, a parent of a surviving child under the age of 18 years of the deceased or be a person under the age of 18 years.
The Claim Process
To make a claim, notice must be given to the executor within 6 months of the date of death. An application and supporting documentation regarding the claimant’s financial and personal circumstances are to be filed with the Court within nine months of the date of death.
As part of the process, the parties must participate in mandatory dispute resolution, such as mediation, to settle the matter. If an agreement cannot be reached, the matter will proceed to trial in front of a Judge.
Factors Considered by the Court
The needs of the applicant will be assessed against the competing interest of any other family members involved. All the circumstances of the case will be considered by the Court, including:-
1. The size of the estate;
2. The maintenance, support or assistance (financial or otherwise) that the deceased gave the applicant before death;
3. Whether the applicant paid for that support, maintenance or assistance;
4. The applicant’s financial position;
5. The applicant’s maintenance requirements of children/dependants and any special needs of those children/dependants;
6. The applicant’s inability to provide for dependants;
7. The applicant’s state of health;
8. The applicant’s age/employment prospects;
9. The applicant’s assets (either solely or jointly owned);
10. The applicant’s spouse’s assets;
11. Sources of income of the applicant and applicant’s spouse;
12. The applicant’s contribution to the building up or preservation of the deceased’s estate;
13. Support and assistance rendered by the applicant to the deceased in the conduct of the deceased’s business and affairs generally;
14. The applicant’s relationship with the deceased;
15. Any competing claims on the deceased’s estate;
16. Any grounds of disentitlement or reduced provision;
17. Any special needs or special claim of the applicant;
18. Any financial disasters that the applicant has experienced; and
19. The applicant’s desire/need to pursue education.
At Cornerstone Law Offices, our experienced solicitors will take the time to run through details of your family situation and assets and try to avoid problems and potential claims against your estate. Such issues can be costly and distressing for your family members to deal with after your pass away and can cause delays in your estate administration.
Should you have any queries regarding the validity of a will or making a Family Provision Claim or wish to update your estate planning documents, please contact our office to make an appointment to discuss the matter further with our lawyers.
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