Prepare for more provision applications – Proctor

The number of family provision applications to the Supreme Court will continue to grow, the profession was warned at the QLS Succession and Elder Law Conference in Brisbane on Friday.

Justice David Boddice from the Court of Appeal delivered Family provision applications streamlined to an audience of almost 150 as part of the one-day professional development event at voco hotel.

“Whilst in recent times the majority of family provision applications have fallen within the jurisdiction of the District Court, absent a significant increase in the monetary jurisdiction of that court, there will be a steady increase in family provision applications being filed in the Supreme Court of Queensland,” Justice Boddice said.

One reason for this was longevity, he said.

“Many more people tragically suffer the consequences of dementia in their later life,”  he said.

“They’re susceptible to influences, be they improper or internally, and may make decisions which are adverse to one or more of those who would be eligible applicants.

“Those circumstances add to the complexity that will await us in determination of family provision applications.”

Another reason was the wealth of the baby boomer generation and the value of estates increasing exponentially, he said.

“It is the first generation where there are, across the general population, many estates worth fighting for, in terms of real value,” he said, adding that generations before the baby boomers “were lucky in the sense that family relations were a little better”.

Justice Boddice addresses practitioners.

Justice Boddice said the third reason was an increasing sense of entitlement.

“I don’t say that pejoratively, but there is a sense of entitlement in the younger generation, and that is becoming more acute as the divide between the rich and the poor becomes greater,” he said.

“That divide means that there’s a very fertile ground for resentment and disputation between siblings.

“It is also a breeding ground for what I think is a very concerning emerging phenomena and that is that people decide they’d better not wait for death before obtaining what they think they’re entitled to.

“And that is generating a whole different source of litigation for the courts.”

Justice Boddice said the Amended Practice Direction 14 of 2023 was welcome, because it did away with the “one size fits all” approach to family provision applications, as well as ensured the provision of a return date for them.

“Applications were conducted in a too generalised manner without insight into what are their true issues,” he said.

He said vague submissions that lacked appreciation for the application’s individual interests and issues had resulted in unnecessary delay and cost.

“The amendment to our court’s practice direction is designed to discourage the use of family provision applications as bargaining measures, in what is perceived as a means of recovery from the estate by a beneficiary who has no real claim,” he said.

Justice Boddice said however, care should still be taken in advising the making of a family provision application.

Justice Boddice urges care in applications.

“The pursuit of such applications often involves much forensic investigation into the lives of others, with there being many human factors that may explain what seems to be unusual at first blush,” he said.

“Family provision applications should be tailored to the specific issues, having regard to what are the complexities of estate litigation.

“Parties need to be mindful of the unforeseen difficulties in refining and defining the issues within the area of litigation, particularly when it is an area that is fraught with emotions and senses of grievance, real or perceived.”

Justice Boddice’s session was chaired by barrister Karen Gaston, who is also a member of the Queensland Law Society Succession Law Committee.

It was one of many across the day-long conference, which covered topics including elder law, estate planning, estate administration and estate litigation, and was worth seven CPD points.

Keep an eye on Proctor for more photos from the conference.