Wills and Estates

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:
  1. a failure to adequately provide and
  2. only a spouse, child or dependant is entitled to claim.

The issue of testamentary capacity is an issue that we find, we must deal with more regularly, as the population and  our clients, reach a mature age.  In recent times we also find that children and dependants are far more likely to challenge a will, if there is some significant advantage in doing so. If the will of your parent is challenged what would happen?  In legal proceedings the court does not know the true factual situation, what matters is what you can prove.