Family Provision Claims in Queensland: The 9-Month Deadline and What You Need to Know
An estate has been distributed, or is about to be. You believe you should have received more — or anything at all. Under Queensland law, certain people have the right to apply to the Supreme Court for provision from an estate where the will, or the operation of intestacy, has left them without adequate support. But that right is strictly time-limited, and the window in which to act is shorter than most people realise.
Estate assets can be distributed before the 9-month window closes. Act early, not just in time.
The Governing Legislation: Succession Act 1981 (Qld)
Family provision applications in Queensland are governed by Part 4 of the Succession Act 1981 (Qld). The Act allows eligible persons to apply to the Supreme Court of Queensland for provision or further provision from the estate of a deceased person where the disposition of the deceased’s estate, whether under a will or under the intestacy rules, fails to make adequate provision for the applicant’s proper maintenance and support.
This is not a claim that the will is invalid. It is a claim that, even if the will is valid, the provision it makes — or fails to make — is inadequate in all the circumstances. A court can order provision from the estate even where the testator’s reasons for excluding or limiting an applicant’s share were consciously held and sincerely held.
Who Is Eligible to Apply?
Not everyone who believes they should have received more from an estate has standing to make a family provision claim. The Succession Act 1981 limits eligibility to specific categories of eligible persons.
- The spouse of the deceased, including a de facto spouse who was in a de facto relationship with the deceased at the time of death.
- A child of the deceased, including an adopted child and a stepchild who was a member of the deceased’s household.
- A dependant of the deceased — a person who was wholly or substantially maintained or supported by the deceased at the time of death.
The relationship categories are not exhaustive in their application — courts assess whether the applicant falls within the eligible category and then determine whether adequate provision has been made for their proper maintenance and support. Adult children who are financially self-sufficient can and do make successful claims, though the threshold for adequate provision is assessed in the context of their actual needs.
The 9-Month Deadline and Why It Is Critical
Under the Succession Act 1981, a family provision application must generally be filed with the Supreme Court within 9 months of the date of death. This is not 9 months from when you received a copy of the will, or 9 months from when you discovered you had been excluded — it is 9 months from the date of death itself.
Two further time pressures compound this deadline. First, the executor of the estate can begin distributing assets to beneficiaries after 6 months from the date of death, subject to legal obligations to maintain assets sufficient to meet any pending claims. Once assets have been distributed, recovering them from beneficiaries who have received them in good faith becomes significantly more difficult. Second, the later a claim is filed within the 9-month window, the more likely it is that some distribution will have already occurred.
Courts can grant an extension of time in some circumstances, but extensions are not granted easily. An applicant who allows the 9-month window to close without filing faces the burden of explaining the delay and demonstrating that an extension is justified, which is a materially harder position than filing in time.
The Adequate Provision Test: What Courts Actually Ask
The central question in a family provision claim is whether the deceased’s estate makes adequate provision for the proper maintenance and support of the applicant. Courts look at a wide range of factors including the applicant’s financial circumstances and needs, the size and nature of the estate, the testator’s reasons for the disposition made, the competing claims of other beneficiaries, and the nature of the relationship between the applicant and the deceased.
The test is not simply whether the applicant is in financial need. A wealthy child can still make a family provision claim if the estate is large and the provision made is disproportionately small relative to what adequate provision would look like in all the circumstances. Equally, a testator who had good reasons for limiting a particular beneficiary’s share — a history of estrangement, conduct by the applicant, or the greater needs of other beneficiaries — may have made adequate provision even where the applicant received nothing.
If You Are the Executor or a Beneficiary Defending a Claim
Family provision applications can be defended. Evidence that the testator had good reasons for the disposition made, that the applicant’s financial circumstances do not justify additional provision, that other beneficiaries have greater or more pressing needs, or that the applicant contributed to an estrangement that justifies a reduced share, can all be relevant to resisting or limiting a claim.
An executor who distributes the estate before the 9-month window closes, without ensuring that assets sufficient to meet any potential claim are retained, can face personal liability if a successful claim is subsequently made and insufficient assets remain to satisfy it.
Whether you are making or defending a family provision claim, the strategy must be set before the 9-month deadline, not after it.
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Frequently Asked Questions
Q: How long do I have to make a family provision claim in Queensland?
A: Generally, 9 months from the date of death. The application must be filed with the Supreme Court of Queensland within that period. An executor can begin distributing the estate after 6 months, so acting early within the window is important.
Q: Can I apply if I was not mentioned in the will at all?
A: Yes. The right to make a family provision claim exists regardless of whether you were named in the will. If you fall within an eligible category — spouse, child, or dependant — and inadequate provision has been made for your proper maintenance and support, you have standing to apply.
Q: Do I need to be in financial need to succeed?
A: Not necessarily. Courts consider the applicant’s financial circumstances as one of many factors, but a family provision claim is not limited to impoverished applicants. The test is whether adequate provision has been made for the applicant’s proper maintenance and support having regard to all the circumstances, including the size of the estate and the nature of the relationship.
Q: Can an adult child who is financially independent bring a family provision claim?
A: Yes. There is no income or asset test that excludes financially self-sufficient adult children from making a claim. However, financial independence is a relevant factor in assessing the level of provision that is adequate for their proper maintenance and support. A wealthy adult child of a large estate may still succeed; the same claim against a modest estate is harder.
Q: What if the estate has already been distributed?
A: Distribution of assets before the 9-month period closes does not automatically defeat a family provision claim. However, recovering assets from beneficiaries who received them in good faith is significantly more difficult. An executor who distributes without maintaining sufficient assets to meet potential claims may be personally liable. Filing early within the 9-month window, and seeking interim orders if necessary, protects your position.
Q: Can the testator’s reasons for excluding me be used against my claim?
A: Yes. Evidence of the testator’s reasons — provided they were genuine, not based on a misconception of fact or unjust — is relevant to whether adequate provision has been made. However, a court can still find that provision is inadequate despite understanding the testator’s reasons, particularly where the applicant’s needs are significant and the estate is large enough to accommodate a provision without significantly diminishing other beneficiaries’ shares.
