When someone you were relying on dies and their will leaves you out or provides less than you need, Queensland law gives you a way to challenge it. It’s called a family provision claim and it’s the most common type of will dispute in the state. This guide covers who can make one, what the court considers, the time limits that apply and what to expect from the process.
What Is a Family Provision Claim in QLD?
A family provision claim is an application to the Supreme Court of Queensland asking the court to order more from a deceased estate for an eligible person who has been left out of a will or received inadequate provision. It doesn’t challenge whether the will is valid. It asks the court to redistribute part of the estate on the basis that the will-maker had a duty to provide for you and didn’t meet it.
The claim is governed by the Succession Act 1981 (Qld) and heard in the Supreme Court of Queensland. The court’s power is discretionary, meaning even where you’re eligible and adequate provision hasn’t been made, the size of any order is a matter of judicial discretion based on the specific facts.
Family Provision Claim vs Contesting a Will
The two are often confused but they’re different legal actions with different grounds and outcomes.
A family provision claim accepts the will is valid. It asks the court to alter how the estate is distributed because the will didn’t adequately provide for an eligible applicant.
Contesting a will’s validity is a separate action. It argues the will itself should be set aside on grounds such as lack of testamentary capacity, undue influence, fraud, forgery or improper execution. If successful the will is invalidated and an earlier valid will or the rules of intestacy apply.
Most Queensland disputes are family provision claims because the grounds are broader and the evidentiary burden is lower than proving a will is invalid.
Who Can Make a Family Provision Claim in QLD?
Not everyone can bring a claim. Under section 41 of the Succession Act 1981 (Qld), eligible applicants are:
- Spouses, including current spouses, de facto partners who lived with the deceased on a genuine domestic basis for a continuous period of at least two years ending on the deceased’s death, and civil partners
- Children of the deceased, including biological, adopted and stepchildren where the stepchild relationship existed at the date of death
- Dependants who were being wholly or substantially maintained or supported by the deceased at the time of death, and who are a parent of the deceased, a parent of a surviving child of the deceased under 18, or under 18 themselves
Being eligible doesn’t guarantee a claim will succeed. It just gets you through the door. The court still needs to be satisfied that adequate provision hasn’t been made for your proper maintenance and support.
Former spouses, distant relatives, friends and carers generally aren’t eligible unless they can meet the dependant test.
What Does the Court Consider?
The court weighs several factors when deciding whether to make an order and how much to award. These include:
- Your financial position and future needs
- The size and nature of the estate
- Your relationship with the deceased and any competing beneficiaries
- Your age, health and earning capacity
- Any contributions you made to the deceased’s estate or welfare
- The deceased’s reasons for the provisions in the will where these are known
- The character and conduct of the applicant
- Any other person the deceased had a responsibility to provide for
Two concepts do most of the work in Queensland family provision cases: adequate provision and proper maintenance and support. Adequate provision is a moving standard that depends on the applicant’s circumstances and the size of the estate. A modest provision might be adequate from a small estate but inadequate from a large one. Proper maintenance and support go beyond bare necessities and consider the applicant’s standard of living, health, dependants and reasonable future needs.
There’s no formula. Every claim turns on its own facts and the court’s job is to decide what adequate provision looks like for the particular applicant.
Time Limits for a Family Provision Claim in QLD
Queensland has strict time limits and missing them can end a claim before it starts:
- Notice of intention to claim: within six months of the date of death
- Filing the application in court: within nine months of the date of death
The court can extend these time limits in limited circumstances but you can’t count on it. Extensions typically require the applicant to show they weren’t at fault for the delay and that the estate hasn’t already been distributed. Once the estate is distributed the practical ability to enforce an order drops sharply.
If you think you might have a claim, get advice early rather than waiting.
How Much Does a Family Provision Claim Cost in QLD?
Costs depend on how the matter resolves. Most family provision claims in Queensland settle at mediation without going to trial, which keeps costs down. Matters that run to a full hearing are significantly more expensive because of counsel fees, expert reports and the time required for trial preparation.
Where a claim succeeds, the court often orders the applicant’s costs be paid from the estate. Where a claim fails, the applicant may be ordered to pay their own costs and sometimes part of the estate’s costs. This is why an honest early assessment of your prospects matters, and why claims with weak merits shouldn’t be run.
For eligible clients litigation funding through JustFund can cover legal fees and disbursements while the claim is running, with repayment only required once the matter is resolved. This can be particularly useful where an applicant has been left with limited assets and the estate itself is holding the funds.
The Family Provision Claim Process
The typical steps are:
- Initial assessment of eligibility, time limits and merits
- Notice to the executor within six months of death
- Filing the claim in the Supreme Court within nine months of death
- Evidence gathering including financial, medical and relationship evidence
- Mediation either court-ordered or private
- Trial where mediation doesn’t resolve the matter
- Court order or settlement redistributing the estate
The majority of claims are resolved at mediation. The court actively encourages settlement and mediation is generally required before a matter proceeds to trial.
Common Family Provision Claim Scenarios
Some of the situations that most often lead to claims in Queensland:
- Blended families where a will-maker leaves everything to a current spouse and children from the previous relationship receive nothing
- Adult children who were disinherited and can show financial need or a moral obligation to the deceased
- Long-term de facto partners whose relationship wasn’t formalised and who weren’t provided for
- Stepchildren who were treated as part of the family but not named in the will
- Estranged children where the estrangement was caused by the deceased or where the child was still owed a duty despite the distance
Every situation is fact-specific and eligibility alone doesn’t determine success.
Get Advice on Your Family Provision Claim
Family provision claims are technical, time-sensitive and turn on the specific facts of your relationship with the deceased and your circumstances. Our will dispute lawyers advise both applicants and executors defending a claim. If you think you may have grounds for a claim or you’re facing one as an executor, we can review the will, assess your position and give you a clear view of your options in Queensland.
Book a consultation to discuss your matter with our estate litigation team.
