What is a Family Provision Application?
A Family Provision Application is an application commenced by an eligible person for further and better provision out the estate of a deceased person.
Such applications may be brought in either the Supreme or District Courts of Queensland, depending upon the value of the estate.
The Application involves a two-stage approach. First, the court must consider whether the applicant has established that the provision that was made for them was not adequate. If the court decides the applicant has not been properly provided for, then they may award further provision out of the estate.
Singer v Berghouse (1994) 181 CLR 201 described the court’s approach to Family Provision Applications as follows:
The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all of the circumstances, was a proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position decides the nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The court cannot rewrite a will; it only has the power to alter the terms of the will only so far as is necessary to properly provide for an applicant.