What Is a Family Provision Claim in Queensland?

Losing a family member is difficult enough. Discovering that you have been left out of their will—or have received much less than you reasonably expected—can make an already distressing time even harder.

In Queensland, certain family members and dependants may be able to make a family provision claim if a deceased person’s will, or the rules applying when there is no valid will, fail to make adequate provision for their proper maintenance and support.

Important time limits apply

If you believe you may have a family provision claim, you should obtain legal advice promptly. Strict time limits apply in Queensland.

Generally, an intending applicant should:

• give the executor or administrator written notice of the intended claim within six months after the deceased person’s death; and
• commence Court proceedings within nine months after the date of death.

The Court has discretion to allow an application outside the nine-month period, but an extension is not automatic. Delay may also create serious practical problems if some or all of the estate has already been distributed.

You should therefore seek legal advice as early as possible—even if you do not yet have a copy of the will or know the value of the estate.

If either deadline has already passed, you should not assume that it is too late. Urgent legal advice should be obtained about whether a late application may still be possible.

What is a family provision claim?

A family provision claim is an application asking the Court to alter the way a deceased person’s estate is distributed.

The claim does not necessarily challenge whether the will itself is valid. Instead, the applicant argues that the will—or the distribution applying when there is no will—does not make adequate provision for their proper maintenance and support.

Section 41 of the Succession Act 1981 (Qld) gives the Court discretion to order that further provision be made from the estate.

An eligible person may consider making a claim where they:

• have been completely left out of the will;
• received only a small share of the estate;
• were financially dependent on the deceased;
• have significant financial, medical or personal needs;
• were promised particular property or financial support; or
• believe the will does not fairly reflect their relationship with, or contributions to, the deceased.

However, disappointment with a will is not, by itself, enough to establish a successful claim.

Who can make a family provision claim?

The right to apply is limited to particular categories of people. An application may generally be made by the deceased’s spouse, child or eligible dependant.

Spouse

This may include:

• a husband or wife;
• an eligible de facto partner;
• a civil partner; and
• in some circumstances, a former spouse or civil partner who was receiving, or entitled to receive, maintenance from the deceased.

A de facto partner will generally need to establish that they and the deceased lived together as a couple on a genuine domestic basis for a continuous period of at least two years ending on the date of death.

Child

A child can include:

• a biological child;
• an adopted child; and
• an eligible stepchild.

An adult child is not prevented from making a claim merely because they are over 18 or financially independent. Their age, financial circumstances, relationship with the deceased and the competing claims of other beneficiaries will nevertheless be relevant.

Dependant

A dependant may include someone who was being wholly or substantially maintained or supported by the deceased at the time of death and who was:

• a parent of the deceased;
• the parent of a surviving child of the deceased who is under 18; or
• a person under 18 years of age.

Eligibility can be complicated, particularly where the potential applicant is a de facto partner, stepchild, former spouse or dependant. Legal advice should be obtained before assuming that you are—or are not—entitled to apply.

What does the Court consider?

There is no fixed formula for deciding a family provision claim. Every matter depends on its individual circumstances.

The Court may consider:

• the size and nature of the estate;
• the applicant’s income, assets, liabilities and financial resources;
• the applicant’s present and future financial needs;
• the applicant’s age and health;
• any physical, intellectual or mental disability;
• the nature and length of the applicant’s relationship with the deceased;
• the reasons for any estrangement;
• financial and non-financial contributions made by the applicant;
• whether the deceased maintained or supported the applicant;
• any promises or statements made by the deceased;
• benefits previously received by the applicant;
• the needs and circumstances of the beneficiaries named in the will;
• other eligible people who may have competing claims; and
• any conduct the Court considers relevant.

The Court must balance the applicant’s needs against the deceased’s freedom to decide how their property should be distributed and the legitimate claims of other beneficiaries.

A family provision claim is not simply an exercise in dividing the estate equally among family members.

What can the Court order?

If the Court decides that adequate provision was not made, it may order that further provision be made from the estate.

Depending on the circumstances, this may include:

• payment of a lump sum;
• transfer of a house or other property;
• periodic payments;
• a right to occupy a property;
• provision through a trust; or
• another form of provision considered appropriate.

A successful applicant is not automatically entitled to an equal share of the estate. The order will depend on what the Court considers adequate and proper in the circumstances.

Can litigation funding be arranged?

A person may have a valid claim but lack the immediately available funds needed to pay legal fees, barrister’s fees, mediation expenses or other litigation costs.

In certain suitable family provision and estate matters, Quinn Law Group may be able to assist a client to apply for litigation funding through JustFund.

If approved, funding may help meet approved legal fees and expenses while the claim progresses. Repayment, together with applicable interest and charges, is generally deferred until the estate or claim is resolved.

Funding is not available in every matter. Each application is separately assessed by JustFund and remains subject to its eligibility requirements, lending criteria, terms and approval. Funding for an applicant bringing a family provision claim may only be available in limited circumstances.

Quinn Law Group can discuss whether funding may be appropriate and assist with the application process. Clients should carefully consider the funding agreement, interest, charges and likely repayment amount before deciding whether to proceed.

Does the claim have to go to trial?

Not necessarily.

Many family provision disputes are resolved through negotiation or mediation. An agreement may be reached about how the estate should be distributed without requiring a final Court hearing.

Early resolution can reduce legal costs, delay and emotional stress. It may also allow the parties to negotiate a more flexible outcome than the orders available after a trial.

However, negotiations do not suspend the statutory time limits. Court proceedings may still need to be commenced within nine months after the death, even when settlement discussions are continuing.

Who pays the legal costs?

There is a common misconception that the estate automatically pays everyone’s legal costs. That is not always the case.

The Court has broad discretion regarding costs. It may order costs to be paid from the estate, by one of the parties or in another way it considers appropriate.

The outcome may depend on:

• the strength and reasonableness of the claim;
• the size of the estate;
• how the parties conducted the proceeding;
• whether unnecessary costs were incurred; and
• whether reasonable settlement offers were made or rejected.

In a smaller estate, legal costs can significantly reduce the amount ultimately available to the beneficiaries. The Court may also limit the costs recoverable by a party in an appropriate case.

An early assessment of the claim’s legal strength, likely value and commercial viability is therefore important.

What if there is no will?

A family provision claim may still be made when a person dies without a valid will.

In that situation, the estate is distributed according to Queensland’s intestacy rules. If those rules do not make adequate provision for an eligible spouse, child or dependant, that person may be entitled to seek further provision from the estate.

How Quinn Law Group can help

Family provision disputes are often legally complex and emotionally difficult. A properly prepared claim usually requires detailed evidence about the applicant’s financial position, needs, relationship with the deceased and contributions, together with the circumstances of the estate and other beneficiaries.

Quinn Law Group can advise you about:

• whether you are eligible to make a claim;
• the applicable six- and nine-month deadlines;
• the strength and likely value of your claim;
• urgent steps required to protect the estate;
• obtaining a copy of the will and information about the estate;
• negotiating with the executor and beneficiaries;
• mediation and settlement;
• litigation funding that may be available through JustFund; and
• commencing or defending Court proceedings.

If you have been left out of a will or believe that inadequate provision has been made for you, contact Quinn Law Group promptly to discuss your circumstances.

Dane Thornburgh – Senior Associate Solicitor Quinn Law Group