‘Family provision’ applications are made when someone believes they have not received a fair share of an estate.
‘Proof in solemn form’ applications are made to ask a court to decide if a person’s Will is valid if it is believed that they may not have had the legal capacity to make it or were unduly influenced to make it in a particular way.
Applications for court approval of informal Wills are made where someone has written a Will that does not comply with the legal requirements to be valid.
Applications for ‘statutory Wills’ are made to a court to make a Will on behalf of people who do not have capacity to make one themselves (often due to an intellectual disability) while they are still alive.
In Queensland, the people who can bring a family provision application are:
- a spouse (including de facto and same sex spouse);
- a child (including a step-child and adopted child); and
- any parent of the deceased, a parent of a minor child of the deceased or any person under the age of 18 years, if that person was wholly or substantially maintained or supported financially by the deceased.
The rules about who can bring a family provision application are different in each state.
In Queensland, a person who wishes to make an application must give notice of their intention to do so to the executor or administrator of the estate within six months of the date of death.
They must then file and serve their application within nine months of the date of death.
There may be circumstances where the court will allow an extension of time. However, there must be very good reasons why the time frames were not adhered to and there are no guarantees that the court will allow an extension.
The timeframes for bringing an application are different in each state.
Generally, the legal costs of parties to a Will dispute will be paid by the estate, if there are enough assets to do so.
However, if any party acts unreasonably, causes undue delay or brings frivolous claims, their costs may not be paid and they might even be ordered to also pay the other parties’ legal costs in the matter.