Quinn & Scattini Lawyers’ Wills & Estates Team regularly represent clients who want to contest what they are receiving under a will, or who want to contest the share of the estate they are receiving under the rules of intestacy when the deceased person has not made a will.

The Law

Section 41 of the Succession Act 1981 (“the Act“) provides that if a person dies, with or without a will, and adequate provision is not made for the proper maintenance and support of the deceased’s spouse, child or dependant, then the court may, in its discretion, on application by or on behalf of the spouse, child or dependant, order that provision be made out of the deceased’s estate for the spouse, child or dependant.

Who Can Make An Application?

It is important to note the 3 categories of persons who are entitled to make an application under section 41 of the Act. These are “spouse”, “child” and “dependant” of the deceased person.

So a person wanting to apply for further provision from a deceased person’s estate must be a spouse, child or dependant of the deceased person.

The Spouse

The Act defines “spouse” as the husband, wife, de facto partner or registered partner of the deceased.In respect of a de facto partner, the deceased and the de facto partner must have been living as a couple on a genuine domestic basis. In deciding this, any of their circumstances may be taken into account, including:

• whether they were living in a common residence,
• the length of their relationship,
• whether or not a sexual relationship existed,
• the degree of financial dependence or independence,
• their ownership and use of property,
• their commitment to a shared life,
• the care and support of children,
• the performance of household tasks, and
• the perception of their relationship by members of the public.

It is also necessary that the de facto couple has lived in a relationship for a continuous period of at least 2 years which only ended on the death of the deceased person.

The Child

The Act defines “child” in relation to a deceased person to mean any child, stepchild or adopted child.

The Dependant

The Act defines “dependant” in relation to the deceased person as being any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by the deceased at the time of the deceased’s death and who is:

• a parent of the deceased,
• the parent of a surviving child of the deceased under the age of 18 years, or
• a person under the age of 18 years.

There are other factors which are relevant in this type of application, such as the nature of the relationship between the deceased person and the applicant, and the financial circumstances of the applicant.

Time Limits Apply

An eligible person wanting to make an application for further provision from a deceased person’s estate in Queensland must give notice of their intention to the executor within 6 months after the date of death, and must file their application in court within 9 months after the date of death.

If you want to make an application for further provision from a deceased person’s estate, you should contact Quinn & Scattini Lawyers promptly.

How We Can Help

Quinn & Scattini Lawyers’ will dispute lawyers are experienced in all types of will and estate litigation. Our lawyers will advise and represent you in all court proceedings, mediations and negotiations regarding deceased estates.

Contact Us

Get the best representation. Contact Quinn & Scattini Lawyers’ experienced will dispute lawyers on 1800 999 529, email mail@rmold.newwebsite.live or submit an enquiry below.

We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.