Family Provision Claim QLD - Contest Unfair Wills in Queensland

Family Provision Claims in Queensland: A Complete Guide

When someone passes away in Queensland, their will should make adequate provision for their family members and dependents. However, wills don't always reflect the deceased person's moral obligations, and sometimes they leave out people who genuinely depended on them for support. Queensland law recognizes this reality through family provision applications - legal challenges that allow eligible persons to seek appropriate provision from a deceased estate.

Family provision claims in QLD are governed by the Succession Act 1981 (Qld), which gives the Supreme Court of Queensland discretion to redistribute estate assets when a will fails to make adequate provision for eligible family members. This legal framework balances testamentary freedom - the right to leave your estate to whoever you choose - against the deceased's moral duty to provide for spouses, children, and others who depended on them.

Understanding how these laws actually apply in Queensland requires knowledge of court decisions, statutory interpretation, and the practical realities of estate disputes. Our experienced will dispute lawyers have successfully represented clients in family provision applications throughout Queensland, helping eligible persons secure the provision they deserve from deceased estates.

What is a Family Provision Application in Queensland?

A family provision claim is an application to the Supreme Court of Queensland seeking a share or larger share from a deceased estate. This legal process recognizes that deceased persons have moral obligations to provide for certain family members and dependents, regardless of what their will says or whether they died without a will.

Under the Succession Act 1981 (Qld), eligible persons can apply to the court if they believe adequate provision was not made for their proper maintenance, education, and advancement in life. The court has broad discretion to order that the estate provide appropriate support based on the circumstances of both the applicant and the deceased estate.

Key Requirements for Making a Claim

To make a successful family provision application in Queensland, you must demonstrate several essential elements:

• Eligible Person Status: You must qualify as an eligible person under the Succession Act - typically a spouse, child, or dependent of the deceased
• Left Out or Inadequately Provided For: You must show the will (or intestacy rules if there's no will) fails to make adequate provision for your needs
• Timely Notice: Written notice of your intention to apply must be given within 6 months of the date of death
• Court Application Within 9 Months: Your originating application must be filed with the Supreme Court within 9 months of death
• Inadequate Provision: You must establish that adequate provision has not been made for your proper maintenance, education, and advancement in life

Family provision applications in Queensland are fundamentally different from other types of will disputes. Unlike claims alleging the will is invalid due to lack of capacity, undue influence, or fraud, a family provision claim accepts that the will is valid but argues it fails to adequately provide for eligible persons who have a moral claim on the estate.

Who Can Make a Family Provision Claim in Queensland

Queensland law limits family provision applications to specific categories of eligible persons who had particular relationships with or dependencies on the deceased person. The Succession Act 1981 (Qld) defines who has standing to bring a family provision claim.

Spouses and De Facto Partners

A spouse includes both legally married partners and de facto partners (including same-sex relationships) who were in a genuine domestic relationship with the deceased at the time of death. De facto relationships must generally have existed for at least two years, or involve a child of the relationship, or be registered under Queensland law.

Former spouses may also qualify as eligible persons in Queensland if they were receiving or entitled to receive maintenance from the deceased at the time of death. This recognizes ongoing financial dependencies that survive relationship breakdown.

Children of the Deceased

All children of the deceased are eligible persons under Queensland's family provision laws, including:

• Biological Children: Natural children of the deceased, regardless of whether they were born during marriage or outside marriage
• Adopted Children: Children formally adopted by the deceased have the same rights as biological children
• Stepchildren: Stepchildren who were treated as children of the deceased during their relationship with the deceased's spouse
• Adult Children: There is no age limit - adult children can make family provision claims just as minor children can

The landmark Queensland case of Singer v Berghouse established that adult independent children are not automatically disqualified from family provision claims. While their independence affects what provision is adequate, they retain standing to apply if they can demonstrate inadequate provision for their proper advancement in life.

Dependents of the Deceased

Persons under 18 who were being wholly or substantially maintained by the deceased immediately before death may qualify as eligible persons. This category captures relationships where genuine dependency existed, even without formal family ties.

To establish dependent status, you must prove the deceased provided substantial financial support for your maintenance - not merely gifts or occasional assistance. Courts examine the extent of dependency, its duration, and whether the deceased had assumed responsibility for your support. Examples might include elderly parents the deceased supported, disabled siblings receiving care, or long-term partners not meeting the de facto requirements.

Grandchildren in Special Circumstances

Grandchildren are not automatically eligible persons in Queensland but may qualify if they were wholly or substantially dependent on the deceased. This typically requires evidence that the deceased had assumed a parental or primary caregiver role, providing regular substantial support rather than typical grandparent involvement.

Grounds for Family Provision Applications in Queensland

Being an eligible person gives you standing to make a family provision claim, but does not guarantee success. You must also demonstrate that adequate provision has not been made for your proper maintenance, education, and advancement in life from the deceased estate.

What "Adequate Provision" Means

Adequate provision is not simply what the applicant wants or what seems fair in comparison to other beneficiaries. Instead, it reflects what a wise and just testator would have provided, considering all relevant circumstances. The court applies an objective standard - what provision would be appropriate given the applicant's needs and the estate's capacity to provide.

When Adequate Provision May Not Have Been Made

Courts typically find inadequate provision in situations including:

• Complete Exclusion: The deceased's will entirely omits a spouse, child, or dependent without apparent justification
• Token Provision: A nominal amount that bears no relationship to the applicant's needs or the estate's size
• Inadequate Share: The will provides something, but it's insufficient given the applicant's circumstances and the estate's size
• Blended Family Disputes: Second marriages where children from first relationships receive little or nothing
• Unequal Treatment: One child receives substantially less than siblings without proportionate justification
• No Will Scenarios: Intestacy laws distribute assets in ways that fail to provide adequate support for dependents
• Disabled Beneficiaries: Special needs children or dependents receiving inadequate provision for long-term care

What Is Disentitling Conduct?

Certain conduct by the applicant may reduce or eliminate what would otherwise be adequate provision. Courts consider factors such as serious criminal behavior against the deceased, abandonment of parental responsibilities, extended periods of estrangement where the applicant was responsible for the breakdown, and conduct that caused substantial distress or harm to the deceased.

What the Queensland Supreme Court Considers

When determining family provision applications, the Supreme Court of Queensland exercises broad discretion guided by statutory factors in the Succession Act 1981 (Qld) and established case law principles. The court's role is to determine what provision is adequate for the applicant's proper maintenance, education, and advancement in life.

Key Factors the Court Examines

• Applicant's Financial Circumstances: Your income from all sources, assets and liabilities, earning capacity and employment prospects, and your ability to provide for your own needs
• Size and Nature of the Estate: Larger estates create greater capacity to provide for claimants while still honoring the testator's wishes to other beneficiaries
• Competing Claims: The claims and needs of other beneficiaries, including other eligible persons who may also depend on the estate
• Relationship with Deceased: The quality and character of your relationship with the deceased, including any periods of estrangement and the reasons for them
• Contributions Made: What you contributed to the estate, whether through direct financial contributions, caring for the deceased, or building up estate assets
• Age and Health: Your current age, physical and mental health, and likely future needs arising from these factors
• Testator's Wishes: The reasons, if known, why the deceased made the provision they did, though this is not determinative

The "Wise and Just Testator" Test

Queensland courts apply the "wise and just testator" test established in case law. This asks what provision a prudent person in the deceased's position would have made, considering all relevant circumstances. The test recognizes that testators have moral obligations to provide for family members and dependents, even if they chose to ignore those obligations in their will.

How to Make a Family Provision Claim in Queensland

Making a family provision application involves several procedural steps through the Queensland Supreme Court. Our estate lawyers guide you through each stage to maximize your chances of success.

Family Provision Claim Time Limits in Queensland

Queensland imposes strict time limits for family provision applications that are among the shortest in Australia. Understanding and complying with these deadlines is absolutely critical, as failure to meet them can result in permanent loss of your right to make a claim, regardless of how strong your case might be.

6-Month Notice Requirement

Under section 41 of the Succession Act 1981 (Qld), you must give written notice of your intention to apply for provision within 6 months after the date of the deceased person's death. This notice must be given to the executor named in the will, or if there's no will, to the person who is entitled to apply for letters of administration.

The notice requirement serves an important protective function. It prevents estate representatives from distributing assets before a potential family provision claim is resolved, as section 42 prohibits distribution after receiving notice except with court permission or applicant consent. This ensures estate assets remain available to satisfy any court order for provision.

9-Month Application Deadline

More critically, your actual originating application to the Supreme Court must be filed within 9 months after the date of death. This is an absolute deadline that courts rarely extend. Simply giving notice within 6 months does not satisfy this requirement - you must actually file and serve court proceedings within the 9-month window.

The 9-month limitation period in Queensland is calculated from the date of death, not from when probate is granted or when you learned of the death. This can create significant practical difficulties if you were unaware of the death or couldn't obtain information about the estate within this timeframe. However, courts have been reluctant to grant extensions except in truly exceptional circumstances.

Applications for Extension

While the Succession Act allows applications for extension of time, Queensland courts have interpreted this power restrictively. You must demonstrate adequate reason for the delay and that the estate would not be unduly prejudiced. Mere ignorance of the time limits or delays in obtaining legal advice are generally insufficient grounds for extension.

Types of Provision Awarded

If the Supreme Court determines adequate provision has not been made, it has broad discretion to order provision in various forms. The type and amount of provision depends on the applicant's needs, the estate's capacity, and what would appropriately fulfill the deceased's moral obligations.

Common Forms of Provision

• Lump Sum Orders: The most common form of provision - a specified amount paid from the estate as a single payment
• Transfer of Specific Property: The court may order that particular estate assets, such as the family home, be transferred to the applicant
• Life Interests: The right to use or occupy property (typically the family home) for your lifetime, with remainder to other beneficiaries
• Periodic Payments: Regular ongoing payments for a specified period or for life, often appropriate for ongoing maintenance needs
• Creation of Trusts: Especially for applicants with disabilities or who may not be able to manage a lump sum responsibly

How Courts Determine Amount

The court considers what provision is needed for your proper maintenance, education, and advancement in life. This is not based on what you want or what seems equal, but on an objective assessment of your legitimate needs measured against the estate's capacity to provide. Courts also consider what would not unduly burden other beneficiaries who have legitimate claims on the estate.

Defending Against Family Provision Claims

If you are an executor, administrator, or beneficiary facing a family provision claim, you need experienced estate lawyers to protect the estate and your interests. Successful defence requires understanding both legal grounds and practical strategy.

Grounds for Defending Claims

• Lack of Eligibility: Challenging whether the applicant qualifies as an eligible person under the Succession Act
• Adequate Provision Already Made: Demonstrating the will already makes appropriate provision given all circumstances
• Lifetime Benefits Received: Showing the applicant received substantial benefits during the deceased's lifetime that should be considered
• Disentitling Conduct: Proving the applicant engaged in conduct that justifies limited or no provision
• Limited Estate Resources: Demonstrating the estate cannot provide more without unduly prejudicing other beneficiaries with legitimate claims
• Testator's Reasons: Presenting evidence of why the deceased made the provision they did

Strategic Considerations for Executors

Executors face competing obligations - they must defend the estate and the testator's wishes, but also have duties to deal fairly with potential claimants. If you're an executor facing a claim, seek legal advice early. Settling reasonable claims can be more cost-effective than contested litigation, and the estate's legal costs come from the assets you're administering.

No Win No Fee Family Provision Claims

Will and Estate Lawyers Australia offers no-win-no-fee arrangements for eligible family provision applications with strong prospects of success. This removes the financial barrier that prevents many eligible persons from pursuing legitimate claims.

How No Win No Fee Works

• Free Initial Assessment: We assess your case at no charge and provide honest advice about your prospects
• No Upfront Legal Fees: If we accept your case, you pay no upfront legal fees to commence proceedings
• Full Service Coverage: We handle all aspects from notice through to settlement or hearing
• Success-Based Payment: If your claim succeeds, our legal costs are typically paid from the estate as part of the settlement or court order
• Risk-Free If Unsuccessful: If your claim fails, you pay nothing for our professional services under the no-win-no-fee agreement

Eligibility for No Win No Fee

Not all family provision claims qualify for no-win-no-fee arrangements. We assess each case on its merits, considering factors such as strength of your eligibility claim, likelihood of demonstrating inadequate provision, estate size and capacity to satisfy an order, and time remaining before limitation deadlines.