A family provision claim is a legal application that lets you contest a deceased person’s estate in Queensland. If you’ve been left out of a will, or the provision made for you falls short, you may have the right to seek more.
At Securator Legal, we handle family provision claims for spouses, children, and dependants across Queensland. We understand the legal process and the strict time limits involved.
In this guide, we’ll cover:
- What a family provision claim means under Queensland law
- Who can make a claim
- How the court decides your case
- The deadlines you need to meet
Read on to learn how family provision claims work and whether you can apply.
What Does a Family Provision Claim Mean Under Queensland Law?
A family provision claim is an application to the Supreme Court asking for a share of a deceased estate. You can make this type of claim when you believe a will has left you without adequate provision for your proper maintenance and support.
The Succession Act 1981 governs these claims in Queensland. It sets out who can apply, what the court looks at, and how judges make their decisions.
This act exists because Queensland law recognises that will makers have a moral duty to provide for certain family members and dependants. Even if the will says otherwise, the court can step in and adjust the distribution.
Now, one thing many people don’t realise is that you can still make a claim even if the deceased died without a valid will. This is called an intestate estate. Queensland’s intestacy rules will determine how assets get distributed in these situations.
But if those rules leave you short, you still have the right to apply for more. Here’s how these claims work at a glance:
- Legal Basis: The Succession Act 1981 (QLD) gives eligible people the right to claim against a deceased estate.
- Purpose: To receive proper maintenance and financial support when a will falls short.
- Where It’s Filed: Claims go through the Supreme Court of Queensland.
- Applies Without a Will: You can make a claim even without a will if you meet the eligibility requirements.
In combination, these points establish the legal foundation for seeking additional provisions from an estate.
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Who Can Make a Family Provision Claim in QLD?
Spouses, children, and dependants of the deceased person can make a family provision claim in Queensland. The Succession Act 1981 defines exactly who falls into which category, and the rules are more flexible than most people expect.
That said, being eligible doesn’t guarantee the court will award you anything.
We’ll now explain how the law assesses each eligible group.
Spouses and De Facto Partners
Married spouses, de facto partners, and same-sex partners all have standing to make a claim. The main requirement for de facto relationships is that you lived together on a genuine domestic basis at the time of death. It usually means at least two years of cohabitation (though courts look at the full picture).
And if you’re separated but not legally divorced, you can still claim. It’s because the marriage stays intact until divorce is finalised.
Children and Stepchildren
Does being an adult child disqualify you from claiming? No, it doesn’t. There’s no age limit under Queensland law. In fact, biological children, adopted children, and stepchildren are all eligible here.
Specifically, stepchildren remain eligible even after their biological parent dies, given that the step-relationship hadn’t legally ended. Not only that, but a child born after the deceased’s death may also qualify if they were in the womb when the parent passed.
Dependants
Dependants who relied on the deceased for financial support can make a claim. But this category is much narrower than expected. So you will need to show you were wholly or substantially maintained by the deceased at the time of their death (emotional support alone won’t cut it).
For example, an elderly parent living with their adult child and relying on them for housing and bills would likely qualify. The same applies to minor children under 18 who depended on the deceased.
Estranged Family Members
What if you haven’t spoken to the deceased in years? Well, estrangement doesn’t automatically disqualify you from making a claim. The court looks at who caused the estrangement, why it happened, and whether anyone tried to repair things.
Now, if the fallout was the deceased’s doing, estrangement carries less weight against you. And if you’re in genuine financial hardship, that need may outweigh years of no contact.
Tip: Text messages, emails, and bank transfers can be decisive in showing the true nature of a relationship.
How Does the Court Decide a Family Provision Claim?
The court decides a family provision claim by weighing your financial need, your relationship with the deceased, and the size of the estate. Since there’s no fixed formula, each case is assessed on its own facts. And judges balance your circumstances against other beneficiaries and competing claims.
Here are the main factors the court considers:
- Financial Position: The court looks closely at your income, debts, assets, and overall financial need. If you’re struggling to pay rent or cover medical bills, that strengthens your case.
- Estate Size and Nature: Larger estates can absorb bigger claims, but modest estates often mean smaller awards (even when the need is genuine). The court also considers how easily the estate’s assets can be accessed, especially where they are tied up in property.
- Relationship History: If you have a close and supportive relationship with the deceased, it strengthens your claim. However, long periods of estrangement or conflict may weaken it, depending on the circumstances.
- Contributions to the Deceased: Unpaid care, helping with the family business, or funding renovations all work in your favour. In particular, the court recognises sacrifices that benefited the deceased or grew the estate.
- Competing Claims: The court weighs your needs against those of other eligible family members who also depend on the estate. For instance, a surviving spouse or disabled child may have a stronger moral claim than an independent adult child.
The court reaches its decision by weighing these factors in context.
The Two-Stage Court Test
Once you file your claim, the court applies a two-stage test. First, it asks whether the provision made in the will was inadequate for your proper maintenance and support. If the answer is yes, the court moves to stage two.
In the second stage, the court decides what adequate provision should be. For example, if an adult daughter was left nothing despite caring for her father for years, the court might award her a lump sum or a share of the estate.
Put simply, both stages look at your particular circumstances and what the estate can realistically afford to pay.
What Are the Time Limits for a Family Provision Claim?
You have six months to notify the executor and nine months to file your claim from the date of the deceased’s death. These deadlines are strict, and missing them can permanently block your claim. Plus, since the court rarely grants extensions, it’s important to act quickly.
Let’s take a closer look at these timelines.
The Six-Month Notice Deadline
Giving early notice protects your right to claim against the estate, and you need to provide written notice to the executor within six months of the deceased’s death. This’ll put the executor on notice not to distribute assets until your claim is sorted out.
The notice itself doesn’t need to be fancy, but it does need to be in writing (a quick email can be enough). And while missing this deadline won’t automatically kill your claim, it can weaken your position.
But remember one thing: if executors hand out assets without knowing about your intentions, they may not be held responsible later.
The Nine-Month Filing Deadline
You must file your family provision claim within nine months of the death, regardless of the probate status. Missing this deadline can seriously limit your options.
From our experience, late applications rarely get through. The court can extend time in limited cases, but judges look at how long you delayed, why you waited, and whether the estate has already been distributed. And if the assets are gone, there may be nothing left to fight for.
So, if you’re considering a claim, don’t sit on it. The longer the delay, the higher the evidentiary burden to justify it.
Pro Tip: Early notice can pause discretionary distributions even in complex estates.
Don’t Miss Your Chance to Claim
Family provision claims give eligible people a way to seek adequate provision when a will falls short. But these claims involve strict deadlines, detailed evidence, and a legal process that can feel overwhelming, especially while you’re grieving.
If you believe you’ve been left without proper provision from a loved one’s estate, don’t wait until it’s too late. The six-month notice and nine-month filing deadlines move fast.
We help people across Queensland with family provision claims here at Securator Legal. Contact our experienced solicitors today for a confidential chat about your circumstances and your options.
