Disclaimer — This article is of a general nature only and should not be relied upon as legal advice. Each…
Disclaimer — This article is general educational information only and should not be relied on as legal advice. All family provision claims turn on their particular facts. Always obtain personalised advice from a qualified solicitor in Queensland before commencing a family provision claim.
Family provision claims are one of the most common types of estate disputes in Queensland. The Succession Act 1981 (Qld) allows eligible family members to apply to the Supreme Court of Queensland for further provision from an estate if they believe they were not properly provided for in a will (or under intestacy laws).
But not all claims succeed. Every year, courts dismiss applications due to lack of evidence, because the claim does not meet the legal test, or for procedural reasons.
This article explains why some family provision claims fail in Queensland, with case studies and lessons for both claimants and executors.
The Legal Test for Family Provision in Queensland
To succeed in a family provision claim, an applicant must meet three criteria:
- Eligibility — The applicant is a spouse, child, or dependant under the Succession Act 1981 (Qld) [1].
- Inadequate provision — The will (or intestacy distribution) did not make adequate provision for their proper maintenance, support, and advancement.
- Court discretion — The Supreme Court must be satisfied, after weighing all relevant factors, that further provision is justified.
Courts consider:
- The deceased’s moral duty to the applicant
- The applicant’s financial needs and circumstances
- Competing claims of other beneficiaries
- The size and nature of the estate
Common Reasons Why Family Provision Claims Fail
Family provision claims often fail because they do not satisfy the legal requirements.
| Reason for Failure | Explanation |
|---|---|
| Applicant not eligible | Stepchildren not financially dependent, ex-partners or unrecognised de facto relationships |
| Adequate provision already made | Court decides the applicant already received reasonable benefit |
| Applicant financially secure | Claimants with high income, assets, or wealth usually fail |
| Estate too small | Limited estate value cannot justify altering distribution |
| Late application | Not filed within 9 months of death (notice within 6 months) [2] |
| Lack of evidence | No proof of need, dependency, or special circumstances |
| Competing claims stronger | Other beneficiaries (e.g., spouse or minor children) take priority |
Case Studies of Failed Family Provision Claims
Case Study 1 — Independent Adult Child
An adult son applied for further provision after his father left most of the estate to a second wife.
The court dismissed the claim because:
- The son was financially independent, employed full-time, and owned investment property.
- The deceased had a stronger moral duty to provide for his widow.
Lesson: Independent adult children without evidence of dependency or special needs usually fail.
Case Study 2 — Estranged Relationship
A daughter estranged from her mother for over 20 years claimed provision after being left out of the will. The estate was left to the mother’s long-term carer.
The claim was refused because:
- Estrangement was due to the daughter’s conduct.
- The carer had provided daily assistance for many years and was in financial need.
Lesson: Courts weigh relationship quality. Estrangement without reconciliation can defeat or reduce claims.
Case Study 3 — Claim Filed Out of Time
A de facto partner filed a claim 14 months after death without applying for an extension.
The court refused because:
- No satisfactory explanation for delay was given.
- The estate had already been distributed.
Lesson: Time limits are strict. Claims must be notified within 6 months and filed within 9 months of death [2].
Case Study 4 — Small Estate
A child sought provision from an estate worth only $100,000. Most of the estate was consumed by funeral costs and debts.
The court dismissed the claim because:
- The estate had no capacity to provide meaningful further provision.
- Altering distribution would unfairly prejudice other beneficiaries.
Lesson: Small estates restrict the court’s ability to vary distributions, even if need exists.
Case Study 5 — Adequate Provision Already Made
A surviving spouse claimed provision despite inheriting the family home and receiving a $700,000 superannuation death benefit.
The court dismissed the claim because:
- She had already been adequately provided for.
- No moral duty was breached.
Lesson: Courts consider the applicant’s overall financial position, including superannuation and assets outside the estate.
Procedural Requirements That Can Trip Up Claimants
Even strong claims can fail due to technical or procedural issues:
- Time limits — Notice within 6 months, claim filed within 9 months [2].
- Notice to executors — Executors must be formally notified.
- Evidence — Applicants must provide affidavits of income, expenses, assets, and liabilities.
- Mediation — Courts expect parties to attempt mediation before trial.
Lessons for Family Provision Claimants
- Confirm eligibility before applying.
- Provide strong evidence of financial need (income, assets, debts).
- Act promptly — don’t wait until deadlines expire.
- Be realistic about small estates.
- Keep records of contributions to the deceased or dependency.
- Try mediation before costly litigation.
Lessons for Executors
- Respond to claims quickly and request financial disclosure.
- Raise limitation or eligibility issues early.
- Keep accurate estate accounts for transparency.
- Engage in mediation where possible, but defend weak claims.
- Seek costs orders against frivolous applications.
Frequently Asked Questions
Who can bring a family provision claim in Queensland?
Eligible applicants include a spouse (married, de facto, or civil partner), children (including adopted), and certain dependants [1].
How long do I have to make a claim?
Notice must be given within 6 months of death, and claims filed within 9 months [2].
Can stepchildren bring claims?
Only if they were financially dependent on the deceased immediately before death.
Do wealthy applicants ever succeed?
Rarely. Courts expect adult children or wealthy spouses to rely on their own means unless special circumstances exist.
What happens if the estate is very small?
Small estates may not allow for further provision, even if genuine need exists.
Can the court consider superannuation and trusts?
Yes. Provision outside the estate is considered when assessing adequacy.
Key Take-Aways
Not all family provision claims succeed in Queensland.
- Failure often stems from ineligibility, financial independence, estrangement, late filing, or small estates.
- Courts protect genuine dependants and those inadequately provided for.
- Strong evidence, timeliness, and realistic expectations are critical.
- Executors should defend weak claims to protect the estate.
Sources / References
[1] Succession Act 1981 (Qld), Part 4 — Family Provision Applications.[2] Supreme Court of Queensland, Probate and Succession Practice Direction (2025).