How do I make a Family Provision Claim in Queensland?

Discovering that you have been left out of a parent or spouse’s will can be incredibly distressing. However, Queensland law recognizes that testament makers have a moral obligation to adequately provide for certain family members and dependents.

If a will fails to make “adequate provision” for the proper maintenance and support of an eligible person, the court has the power to order that provision be made out of the deceased’s estate. This is known as a Family Provision Claim.

Who is Eligible to Make a Claim?

Under section 41 of the Succession Act 1981 (Qld), you are only eligible to apply for a family provision order if you are ¹:

1. The deceased’s spouse: This includes a husband, wife, registered partner, or de facto partner (typically requiring a continuous relationship of at least two years).
2. The deceased’s child: This includes biological children, adopted children, and stepchildren.
3. A dependent of the deceased: This means any person who was being wholly or substantially maintained or supported by the deceased at the time of their death, and who is a parent, parent of the deceased’s surviving child (under 18), or a person under 18 years of age.

The Court’s Considerations

A Family Provision Claim is not an automatic right to simply take a cut of the estate. You must apply to the court, and the judge will consider the personal circumstances of the person claiming they weren’t adequately provided for, balanced against the circumstances of everyone else who received a gift under the will.

The court typically assesses ²:

• The size and nature of the estate.
• The applicant’s financial position, age, health, and future needs.
• The financial positions of the competing beneficiaries.
• The nature of the relationship between the applicant and the deceased.
• Any contributions the applicant made to the deceased’s estate or welfare.
• Any conduct by the applicant that might disentitle them to a claim.

Time Limits Apply

It is critical to be aware of the strict time limits governing Family Provision Claims in Queensland:

• You must give written notice to the executor of your intention to bring a claim within 6 months of the date of death ³.
• You must commence proceedings in the court within 9 months of the date of death ⁴.

Failure to meet these timeframes may cause you to lose your right to claim altogether, unless the court grants a special extension.

Challenging the Validity of the Will

Sometimes, a testator leaves someone out of a will because they lacked the proper mental capacity at the time the document was created. If there are concerns that the deceased was not of right mind when they executed the will, or if they were subjected to undue influence, the will’s overall validity can be challenged. In these cases, earlier wills may become the binding document.

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Related Topics

• Who is entitled to a copy of a Will in QLD?
• What triggers the need to update a Will?
• Do you need a lawyer for Probate?

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