At Barron & Allen Lawyers Mackay, we have an experienced and dedicated team of Succession lawyers ready to assist with any estate litigation matters. We have assisted with many complex estate litigation matters, acting for both executors defending a family provision application and applicants seeking to bring a claim against a deceased estate.

You can leave your estate to any one you choose, but under the Succession Act 1981 (Qld), there are three (3) classes of people who are eligible to contest Wills in Queensland if they believe they have not been adequately provided for in a Will, namely:

  • Spouses – including marital partners, de facto partners, same-sex partners, civil partners and dependent former spouses. “Spouse” is defined in s.5AA of the Succession Act and includes a de facto partner, as defined in s.32DA Acts Interpretation Act 1954 (Qld,) but only if the relationship had existed for a continuous period of at least 2 years ending on the death of the deceased;
  • Children – including step-children, adopted children and unborn biological children born after the Will maker’s death; and
  • Financial Dependants – “Dependant” is defined in s.40 of the Succession Act as any person wholly or substantially maintained or supported (otherwise than for full valuable consideration) by the deceased.

One or more persons in the above categories could claim that he, she or they have not been adequately provided for and bring a Family Provision Application (“FPA”) against your estate.

What is a Family Provision Application?

We confirm that where an “eligible applicant” believes that a deceased person has not made adequate provision in the Will for their proper maintenance and support, they may make an application to the court to have the situation corrected.

Just because you are “eligible” does not necessarily mean that an application will be successful. It is up to the court to consider the merits of the application, which occurs in a two-stage process:

  • Whether or not adequate provision has been made for the applicant’s proper maintenance and support. The applicant must satisfy the court that inadequate provision has been made before the court can consider making any provision in favour of the applicant; and
  • If adequate provision has not been made, then the court will consider whether an order for provision will be made, and if so, in what amount. The Will, the applicant’s financial position, the size and value of the estate, and the relationship between the applicant and the deceased are all matters taken into account by the court in making its decision.

There is a compulsory mediation that the parties must attend before the matter can be heard by the court. Critical time-frames apply to commencing an application. If you believe that you have grounds to contest a person’s Will, obtaining timely legal advice may be crucial to your prospects of success.

The impact of such a claim is that significant legal fees may be incurred in defending any litigation (including any threat of litigation) and the entitlements of the beneficiaries who you intend to benefit from your Will may also be significantly affected. Getting the appropriate legal advice when making a Will can save your estate time and money, and can also help to ensure that your intentions are carried out.

When we provide estate planning advice, we consider various strategies by which the risk of an FPA could be minimised, including for example, transfer of assets during your lifetime, re-structuring of asset ownership etc.

TEN TIPS FOR BUYING YOUR FIRST HOME OR VACANT LAND

  • This is often overlooked by enthusiastic buyers, too quick to put pen to paper
  • Contracts are important and legally binding documents, and once signed they are difficult to change
  • Dates are important – make sure they are achievable and be prepared to stick to them
  • Consider your future plans for the property – don’t assume it can be done
  • We do not charge any extra to review your Contract!
  • Good advice can save you time, money and stress
  • Standard residential (i.e. house or vacant land) Contracts – Risk passes to the BUYER from 5pm on the first business day after the Contract is dated
  • Buyers should obtain an insurance policy or cover note insuring the property for public liability and replacement value of all improvements
  • Don’t rely on seller maintaining their insurance (they may not have any)
  • “Cooling off” – an implied term in every residential Contract which gives the Buyer the right to simply change their mind about a purchase within a specified time
  • Lasts for five business days from the date the signed Contract is delivered to the Buyer or their solicitor, including that day
  • Is not always “get out of jail free” – the seller can impose a termination penalty of up to 0.25% of the purchase price
  • There are strict eligibility requirements for first home concessions
  • Prior ownership of land anywhere in the world (in any share, even 1%) will rule you out from being eligible, even if you didn’t build on land
  • Provided all buyers are eligible, nil duty is payable on first home or vacant land purchase
  • If purchase price is over $549,999 the first home concession cuts out, but a Buyer may be eligible for a home concession
  • Finance approval date – the date by which you must have acquired a letter confirming satisfactory finance has been approved by your financier
  • Requires effort from the buyer to actually apply for finance – i.e. you cannot state that you did not get finance approval if you’ve never applied
  • It does not mean the money has to be available by that date. There is still a period of time for the lender to organise funds between the approval date, and settlement
  • Buyers are responsible for organising these reports at their own cost
  • Inspection date – the date by which you must have obtained pest and building reports and communicate whether they are satisfactory or whether you wish to terminate
  • Standard Contract terms are often amended by agents to restrict a buyer’s right to terminate – you don’t have to agree to this
  • Seller may be entitled to ask for a copy of the reports if you are relying on them to terminate your Contract
  • Access rights (following signing of Contract) are limited by way of standard Contract terms
  • Upon reasonable notice, the buyer or its consultants may enter the property:
    • once to read any meter;
    • once to value the property (bank’s valuer);
    • enable building and pest inspector; and
    • once to conduct a pre-settlement inspection by buyer.
  • The date agreed in the Contract for exchange of purchase price and transfer paperwork
  • Buyers and sellers don’t need to personally attend settlement
  • We work with your financier to arrange settlement, advise cheques required
  • We calculate any necessary adjustments to the purchase price (e.g. if rates are paid in advance)
  • We collect keys or alternatively they are made available for collection from the agent
  • “Legal fees” – Include:
    • Professional fees (i.e. our charge for the conveyancing service provided, usually a fixed amount plus GST)
    • Disbursements (i.e. costs of obtaining searches, government registration fees, courier fees etc. – charged at cost)
    • Transfer Duty (if not eligible for full concession)
  • Conveyancing is a very competitive area of the law, and not all services are the same! Make sure you are comparing apples with apples when obtaining quotes
  • Some conveyancing services impose extra fees whenever there is a extension of time requested or granted under the Contract
  • Obtaining legal advice on mortgage and loan documents is not usually part of a conveyancing service, and will incur a separate charge
  • Other matters to consider:
    • Council approvals – the Contract does not provide any warranty that the improvements have been built pursuant to building laws. You should consider including a special condition to make your Contract subject to confirming all required approvals are in place.
    • Is there a pool on the property?
    • Are there overhanging trees, poor fences?
    • Should you have a due diligence period to conduct further enquiries?
    • Are there access issues?
    • Electricity & water supply – don’t assume
    • Is the property affected by an easement or other right?
    • Does the “deal” come with other assets?
    • Does GST apply?
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Central Queensland Conveyancing Centre | Conveyancing Mackay

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Welcome to Central Queensland Conveyancing Centre! We look forward to discussing your family law matter. Please book a FREE 20-Minute Appointment to get started.
Welcome to Central Queensland Conveyancing Centre! We look forward to discussing your family law matter. Please book a FREE 20-Minute Appointment to get started. Book A Free Consultation