• Simon Taylor

Pathway to a Successful Family Provision Dependency Estate Claim in Queensland

Your mum or dad has passed away and now and you’re not sure of the pathway for the next step. You then find out unexpectedly your parent has not explained why they left you nothing in their will. If you were by their side until the end or you regularly visited them and were a part of their lives, there are avenues within the legal system to have a court consider making provision for you out of the estate, even though the will didn’t provide for you. That said, you will need to work out whether you are an eligible applicant under the Queensland law (or similar laws in the other Australian states) which is contained within Part 4 - Family Provision of the Queensland Succession Act 1981.

Family Provision Dependency Estate Claim - Are you eligible?

An eligible applicant seeking maintenance and support from the estate assets under section 41 of the Succession Act 1981 includes as follows:

  • The spouse of the deceased (whether married or by de facto relationship)

  • A child of the deceased (which includes a stepchild or adopted child)

  • A person who can establish they were dependant on the deceased during his or her lifetime (this category can be more tricky to understand and an estate lawyer will be able to explain whether or not, even though you’re not a blood relative if you can claim)

Family Provision Dependency Estate Claim - How and when do you bring your application?

Once you have established that you can claim, you should contact your local solicitor as soon as possible before the estate is administered. If you intend to apply for further provision in the estate you should give notice of your intention to the executor of the will or, if you are not sure who that is, have a notice published in the Queensland Law Reports (https://www.queenslandreports.com.au/) as soon as possible after the date of death.

Then you must apply to the Supreme Court of Queensland within 9 months of the date of death. If you miss the cut-off date and you had a good reason for the delay in filing your claim in the court, a court may still allow you to proceed with your claim. Your lawyer is the best person to ask if you are unsure whether you are still able to bring your claim based on your particular circumstances.

Family Provision Dependency Estate Claim - How much can you expect to pay the lawyers?

Asking a lawyer how much things might cost can be a confusing and difficult exercise. On the one hand, you may go to a ‘No win no fee’ lawyer who may promise to get you a big result only to find out later that the payout ends up getting reduced significantly after the lawyers are paid. If you’re not paying upfront, the law firm has to cover its costs somehow and you may end up paying more than you would if you just paid the lawyer as you went through the claim. This is not criticism towards ‘No win no fee’ law firms as they provide vital access to justice for claimants who would otherwise not be able to afford to bring a claim at all. That said, you should carefully read any client agreement you enter into with a law firm to be sure you know what you're getting yourself into and how much it will cost in the end. The best idea is to get a few quotes and decide who you feel most comfortable with and what is going to work best for you. Be wary of lawyers who are eager to promise you an outcome at the first meeting as there will never be a substitute for proper background and research work to get the picture crystal clear before any decision being made about the next steps. Even the simplest cases can be more complex than you first thought and carefully considered preparation is the best way to improve the certainty of the outcome.

There is a degree of complexity when attempting to fully inform clients about anticipated legal costs. The litigation court processes could end shortly after the claim is filed by negotiated agreement, or it could go all the way to final judgment after hearing or anywhere in between. As a rough guide, depending on which law firm you chose, the range of legal costs (estimated as at February 2020) you might expect to pay (excluding GST) relating to a family provision claim may be:

  • Advice on prospects of success $1,200 - $15,000

  • Filing the Claim – expected fee range (excludes court filing fee) $1,800 - $16,500

  • Filing a reply to the defence $800 - $4,000

  • Disclosure – exchange of relevant documents depending on the complexity $1,600 - $8,000

  • Settlement Conference or Mediation $1,800 - $12,000

  • Hearing (assumes 3 court days required including a barrister) $18,000 - $72,000

The estimates cannot predict all possible fees in litigation and are to be used only as a rough guide.

If you feel left out and you want to consider bringing a claim against the estate, get in touch with your lawyer and have an initial discussion about the steps involved to assess your rights and prospects.


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