Need legal advice? We're still open and fully operational during the Coronavirus isolation period.

Aylward Game Solicitors Brisbane
(1800) 217 217 Free case consultation

Have You Been Left Out Of A Will?

Don’t lose hope just yet ! Your lawyer may be able to help by what is known as a Family Provision Claim to the Court. (Traditionally these claims were known as ‘Testator & Family Maintenance’ Claims). The well-known Bosch Lecture Theatre at Sydney University is a monument to this area of law. Mr Bosch donated […]

Have You Been Left Out Of A Will?

Have You Been Left Out Of A Will?

Don’t lose hope just yet !

Your lawyer may be able to help by what is known as a Family Provision Claim to the Court. (Traditionally these claims were known as ‘Testator & Family Maintenance’ Claims).

The well-known Bosch Lecture Theatre at Sydney University is a monument to this area of law. Mr Bosch donated all of his considerable estate to the University of Sydney and left his family destitute. Unsurprisingly, the grandfather case on this area of law is Bosch v Perpetual Trustee Co Ltd (1938) AC 463. (Interestingly, this case was heard by the Privy Council in the UK as the last court of appeal for Australia. Appeals to the Privy Council from Australia were abolished in 1986).

In Queensland the Family Provision Claim remedy is found in Part 4 of the Succession Act 1981 (Old). (Each State of Australia has similar legislation, as does New Zealand where the legislation was invented. The Kiwis are an innovative lot, being the first nation to permit women to vote).

PROVING ELIGIBILITY

What an Applicant needs to prove in court

The Applicant sues the estate’s executor and needs to prove a number of things, namely:

  • That the Applicant is an eligible person in respect of the deceased to make the claim;
  • That financially the estate is not a small estate;
  • That the Applicant is in a position of financial need (compared with the other beneficiaries under the will);
  • That no provision, or an inadequate provision has been made for the Applicant in the will;
  • That the Applicant has not engaged in any disentitling conduct towards the deceased.
An ‘Eligible Person’ varies from State to State, but generally includes children, adopted children and step children.

Disentitling conduct may include a prolonged period of estrangement from the deceased, violence or abuse towards the deceased. There are also cases involving alcoholic, drug addicted and criminal children that may go to the issue of disentitling conduct. The case of Christie v Christie [2016] WASC 45 is a recent example.

It is a highly discretionary area of law that has many rubbery outcomes for Applicants, with both generous awards and no awards at all being reported.  As an area of law it is not:

  • Carte Blanche to rewrite wills;
  • a salve for hurt feelings;
  • an exercise in achieving a ‘fair distribution’ for all concerned.

COSTS AND FEES

The Applicant’s legal costs are generally paid out of the estate

Provided the Applicant has conducted their case sensibly, and has not rejected any sensible offers to settle made by the estate, then the estate usually pays for the Applicant’s legal fees.

This is an important consideration for Applicant and Estate alike. Lawyers are expensive, and the financial worth of an estate can be obliterated by legal fees.

MEDIATION OVER LITIGATION

These matters are usually mediated not litigated

This is why so many of these cases are resolved by mediation and rarely go to trial. In fact, the Court’s practice directions in this area of law mandate mediation and discourage litigation.

That said, like Family Law, Family Provision litigation can be a very bitter and hostile experience and you need a good lawyer to guide you through it. Lawyers often call this area of law “the divorce court of the dead”.

At Aylward Game we have represented the interests of both the Estate and the Applicant. Call us today.

Contact
United Service Club
Level 4, 183 Wickham Terrace, Brisbane QLD 4001

Free: 1800 217 217
Phone: 07 3236 0001
Fax: 07 3236 0005
Email: mail@aylwardgame.com.au