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

Disclaimer – This guide is offered for general educational purposes only. It is not legal advice. Family Provision claims in Queensland are subject to strict statutory deadlines, detailed evidentiary requirements and potentially significant costs. Anyone considering bringing—or defending—such a claim should seek personalised guidance from a solicitor who practises Queensland succession-law litigation.

Queensland succession law respects testamentary freedom, yet it also imposes a safety-net: a will (or intestacy distribution) must provide “proper maintenance and support” for close family and dependants. When that moral duty appears unmet, an eligible person may apply to the Supreme Court of Queensland for further provision under section 41 of the Succession Act 1981 (Qld).

Below you will find:

• the narrow list of who may apply;
• the deadlines that cannot be missed;
• the two-stage test the Court uses to decide claims; and
• the practical factors and evidence that most often sway outcomes.

Who Can Apply? – The “Eligible Person” Test

Note: The Act automatically treats step-children as “children” once their natural parent has died and the step-relationship remained intact.

Deadlines That Cannot Be Missed

An eligible person must notify the executor within six months of death and must file the Court application within nine months of death. Late filings require the Court’s leave and succeed only in exceptional circumstances, especially once the estate has been distributed. Prudent executors therefore wait at least six months before distributing any assets.

How the Court Decides a Claim

The Supreme Court follows a two-stage analysis:

1. Adequacy stage – Was the applicant left without adequate provision for proper maintenance and support?
2. Provision stage – If the answer is yes, what further provision should now be made? The Court then tailors an order—lump sum, property transfer, life interest or a mix—so the applicant’s reasonable needs are met without unfairly disadvantaging other beneficiaries.

The applicant carries the burden of proof on the civil standard (balance of probabilities).

Factors That Commonly Sway Decisions

• Financial position of the applicant. Courts examine income, debts, housing, cost of dependants and eligibility for pensions. Genuine hardship attracts larger awards.
• Size and liquidity of the estate. Modest estates cannot fund generous adjustments; large cash-heavy estates can.
• Relationship history. A close, supportive bond strengthens a claim; long estrangement—particularly if caused by the applicant—weakens it.
• Competing moral claims. The Court balances the applicant’s needs against those of a surviving spouse, young children or disabled dependants already provided for.
• Contributions to the deceased or estate. Unpaid caregiving, years of labour in a family business, or funding renovations often tilt the moral scale.
• Health and age. Chronic illness, disability, or advanced age usually justify higher provision.
• Promises and expectations. Written or oral assurances by the deceased can reinforce the applicant’s moral claim.

No single factor is decisive; the Court blends them to reach a just outcome.

The Litigation Pathway in Plain English

1. Notice and negotiation – The claimant’s solicitor writes to the executor outlining the claim. Early settlements can save everyone time and costs.
2. Disclosure and valuations – Parties exchange financial documents and commission valuations for property, businesses or collectables.
3. Compulsory mediation – The Court generally orders mediation; most matters resolve at, or shortly after, this stage once evidence is transparent.
4. Directions and trial preparation – If no settlement is reached, the Court sets timelines for affidavits, expert reports and a hearing date.
5. Trial and judgment – Evidence (often by affidavit) is tested in court. The judge then delivers written reasons, makes provision (if any) and orders costs.

Illustrative Example (Hypothetical)

Dr Nguyen leaves a $2 million estate—home $1.4 m, shares $400 k, cash $200 k—to his second wife. His adult daughter from a first marriage earns $45 000 and rents while raising two young children. The Court finds the will inadequate, awards the daughter $300 000 (around 15 % of the estate) and leaves the balance to the widow. Costs come from the estate.

Key Take-Aways

Family Provision law gives statutory protection to a limited class of relatives and dependants, but understanding the rules helps everyone plan and respond effectively.

• Queensland restricts claims to spouses, children (including step-children) and certain dependants.
• Six-month notice and nine-month filing deadlines are strict—miss them and the claim may be lost.
• Judges decide claims in two stages—adequacy then quantum—and weigh financial need, relationship quality, contributions, estate size and competing moral duties.
• Early, well-documented mediation resolves most disputes and preserves estate funds.

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, Wills & Estates List Practice Direction 3/2023 – mediation and case-management in succession proceedings.
4. Banks v Goodfellow (1870) LR 5 QB 549 – testamentary capacity benchmark.
5. Queensland Law Society, Succession Law Committee, Family Provision Claims – Practice Update (2024).