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Who can bring a Family Provision Application?

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Not just anyone can bring a family provision application. Only certain categories of people defined under the legislation are eligible to apply to the Court for a family provision order. Estate Litigation Senior Associate Lucy McPherson discusses the categories of eligibility to apply for family provision and the differences between New South Wales and Queensland.

In New South Wales, the following are “eligible persons” who may apply to the Court for a family provision order:

a) a wife or husband of the deceased person;
b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death;
c) a child of the deceased person (including an adopted child but not including a stepchild. For a stepchild to be eligible they must also demonstrate dependency on the deceased person – see discussion below);
d) a former wife or husband of the deceased person;
e) a person:
i. who was at any particular time wholly or partly dependent on the deceased person; and
ii. who is a grandchild’s of the deceased person or was, at any particular time, a member of the household of the deceased person;
f) a person with whom the deceased was living in a close personal relationship.

A “close personal relationship” is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, who are living together, one or each of whom provides the other with domestic support and personal care.

In Queensland, the following are “eligible persons” who may apply to the Court for a family provision order:

a) a spouse (including a husband/wife, de facto partner, civil partner or dependent former husband or wife or civil partner);
b) a child of the deceased person (including a stepchild or adopted child); and
c) a dependent of the deceased person.

A “dependent” of the deceased person means:

a) a parent of the deceased person; or
b) the parent of a surviving child of the deceased person under the age of 18 years; or
c) a person under the age of 18 years;

who was being wholly or substantially maintained or supported by the deceased person at the time of the deceased person’s death.

Whilst a step-child is automatically eligible to apply for a family provision order in Queensland, under New South Wales legislation stepchildren are not automatically eligible to apply for a family provision order. However, a stepchild may still bring an application in New South Wales if they meet certain criteria. They must demonstrate:

a) they were, at any particular time, wholly or partly dependent on the deceased person (for instance, dependent on the deceased person for accommodation); and
b) they were, at any particular time, a member of the household of which the deceased person was a member.

Some of the legislative definitions in this area of law are complicated so it is important to seek specialised advice. Attwood Marshall Lawyers have a dedicated Estate Litigation team that practices exclusively in this complicated area. If you think you are eligible to contest an estate and would like further advice please contact our Department Manager Amanda Heather, on direct line (07) 5506 8245 or by email on aheather@attwoodmarshall.com.au to arrange an appointment.

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Lucy McPherson

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