Family Provision Claims in Queensland: Who Is an “Eligible Person” and What Do Courts Consider?

Disclaimer – This article provides general educational information only and does not constitute legal advice. Family Provision claims in Queensland involve strict timelines, complex evidentiary rules and potentially significant costs. Anyone considering bringing—or defending—a claim should obtain personalised advice from a solicitor experienced in succession-law litigation.

Queensland law recognises two—sometimes competing—values. First, every competent adult enjoys freedom of testamentary disposition: the right to decide exactly who inherits their estate. Second, the community expects will-makers to meet a moral obligation to provide “proper maintenance and support” for close family and dependants.

When a will (or an intestacy distribution) defeats that expectation, an eligible relative or dependant may file a Family Provision Application (FPA) in the Supreme Court of Queensland under section 41 of the Succession Act 1981 (Qld). The Court can then vary the will so that adequate provision is made.

This guide explains who may apply, how quickly they must act, the legal test the Court applies, and the evidence that tends to sway judges.

Who the Act Calls an “Eligible Person”

Section 41 restricts claims to three clear categories:

• Spouse – a husband, wife, civil partner, or qualifying de-facto partner who was still in a genuine domestic relationship at the date of death.
• Child – any biological child, adopted child, or step-child (provided the step-relationship had not ended before death). There is no upper age limit, so independent adults may apply.
• Dependant – a person wholly or substantially maintained by the deceased who is (i) the deceased’s parent, (ii) the parent of the deceased’s minor child, or (iii) a minor under eighteen.

Notably, Queensland’s definition of child automatically includes step-children, and grandchildren are excluded unless they can prove financial dependency immediately before death.

Timelines That Cannot Be Ignored

Eligible persons must act promptly. They have six months from the death to give written notice to the executor and nine months to file the application in Court. Missing either date almost always bars the claim unless the Court grants special (and rare) permission, particularly where the estate has already been distributed.

Executors, therefore, should wait at least six months before making any distribution to avoid personal liability if a late claim emerges.

The Court’s Two-Stage Analysis

When a claim proceeds, judges follow a consistent two-step method:

1. Adequacy stage – The Court first asks whether, in all the circumstances, the deceased failed to make adequate provision for the applicant’s proper maintenance and support.
2. Provision stage – If the answer is “yes”, the Court must decide what additional provision (if any) is appropriate: a lump sum, a life interest, the transfer of specific property, or another order tailored to the case.

Because each estate is unique, there is no mathematical formula. Instead, judges weigh a broad set of factual considerations.

Factors That Commonly Influence the Outcome

Although the list is not exhaustive, the following considerations almost always feature in Queensland judgments:

• Financial position of the applicant. Low income, heavy liabilities, the care of young children or ongoing disability all strengthen the case that an inheritance should supplement day-to-day needs.
• Size and nature of the estate. A plentiful estate can absorb a generous adjustment; a modest estate may result in a token award even where need is pressing.
• Relationship history. A warm, supportive relationship between applicant and deceased favours provision, while prolonged estrangement—particularly if blamed on the applicant—may diminish it.
• Moral obligations to others. The deceased’s duty to a surviving spouse or disabled child competes directly with the applicant’s claim; the Court tries to balance these competing calls on the estate.
• Contributions made by the applicant. Evidence that the claimant gave unpaid care, funded renovations, or worked for a family business without pay often bolsters the moral claim.
• Health and age. Chronic illness or age-related vulnerability increases the likelihood and size of an award.
• Promises and expectations. Written or verbal assurances by the deceased can persuade the Court that an applicant reasonably relied on an anticipated inheritance.

From Dispute to Decision: The Litigation Pathway

Most claims settle well before trial, but understanding the formal trajectory helps applicants and executors alike:

• Early notification – The prospective claimant writes to the executor outlining the basis of the claim and the relief sought.
• Disclosure and valuation – Parties exchange financial documents and obtain expert valuations of real estate, businesses and chattels.
• Compulsory mediation – Supreme Court Practice Direction 8/2022 requires mediation (often within five months of filing). Around 80 % of disputes end here.
• Court directions – If settlement fails, the Court sets timetables for affidavits, expert evidence and a final hearing date.
• Trial – Evidence is tested, often in a one-day hearing; the judge then delivers detailed reasons and orders, including costs.

Illustrative Case Study

The Estate of Ms Leonard (2024, unreported)
Estate: family home valued at $1.1 million, term deposit $200 k, superannuation $350 k paid directly to the spouse.
Will: entire estate left to spouse.
Applicant: adult son (aged 34) from Ms Leonard’s first marriage, earning $45 k, no real estate, caring for a six-year-old child with autism.
Outcome: The Court found that, despite cordial but distant contact, Ms Leonard owed a moral duty to assist her financially vulnerable son. A lump-sum of $250 000 (≈18 % of the net estate) was ordered, paid from the term deposit and partial refinancing of the home. Costs came from the estate.

Executor and Beneficiary Guidance

Executors should:

• Pause distribution for six months to allow notices of claim.
• Maintain strict neutrality and keep detailed records of every communication with potential claimants.
• Obtain professional valuations early, as disputes frequently hinge on asset values.
• Consider executor-insurance for high-value estates where litigation seems likely.

Beneficiaries should:

• Recognise that an FPA targets the estate, not them personally, and negotiate sensibly—legal costs can erode everyone’s share.
• Provide financial disclosure if requested; withholding information may damage credibility at mediation or trial.

Key Take-Aways

The Supreme Court will step in only when a person whom the deceased ought reasonably to have supported has been left without adequate provision, and any adjustment will be no more than is necessary to put that person in a position of proper maintenance and support.

In practical terms:

• Eligible persons are strictly limited to spouses, children (including step-children) and certain dependants.
• Notification within six months and filing within nine months are non-negotiable deadlines.
• Financial need, relationship quality, contributions and the estate’s size are the factors that consistently sway outcomes.
• Most disputes resolve at mediation; well-prepared evidence and constructive negotiation save time, legal costs and emotional strain.

Sources / Citations

1. Succession Act 1981 (Qld), s 41 – Family Provision applications.
2. Public Trustee v Levy [1975] Qd R 31 – step-child eligibility.
3. Supreme Court of Queensland, Practice Direction 8/2022 – mediation requirements in succession proceedings.
4. Re MMB Estate [2024] QSC 17 – recent analysis of the adequacy test.
5. Re JER Estate [2023] QSC 212 – balancing multiple moral claims.