The six-month and nine-month time limits that apply to family provision applications in Queensland are not reminders. Under Queensland's Succession Act, written notice of an intended claim must generally be given within six months of the death, and proceedings must be started within nine months. Once those periods pass, an application to the court is needed just to get leave to proceed, and that application is not automatic.
A family provision claim asks the Supreme Court of Queensland to make, or increase, the provision made for an eligible person from a deceased person's estate. The court weighs the applicant's needs, the length and nature of the relationship, what others have been left and what the deceased may have intended. There is no formula, and the outcome depends on the facts of each case, according to the Federal Circuit and Family Court of Australia.
The Brookwater Legal team helps clients across Greater Springfield and Ipswich with family provision claims and estate matters.
Here is how a family provision application generally works in Queensland, and what the time limits mean in practice.
Key takeaways
- Written notice of an intended claim is generally given within six months of the death.
- Proceedings must be started within nine months of the date of death.
- Spouses, children and dependants are among those who may apply under Queensland's Succession Act.
This article is general information only and is not legal advice. Every situation is different, and you should speak with a solicitor about your own circumstances.
What is a family provision application in Queensland?
A family provision application asks the Supreme Court of Queensland to make adequate provision for an eligible person's proper maintenance and support from a deceased person's estate, where the will, or the intestacy rules, have not done so. Queensland's Succession Act gives the court a broad discretion to make whatever provision it thinks fit, including a lump sum, periodic payments or a right to reside in a property.
The claim can be made whether the deceased left a valid will or died without one. The court does not set aside the will. Instead, it decides whether adequate provision was made, and if not, what the estate should now provide.
A family provision application is different from challenging a will's validity. Challenging validity means arguing the will was not properly made, for example because the deceased lacked testamentary capacity or was subject to undue influence. A family provision claim accepts the will as valid but argues the provision made under it is inadequate.
Who may apply for family provision in Queensland?
Queensland's Succession Act sets out who is eligible to apply. The eligible persons are a spouse, a child and a dependant of the deceased. Getting this right matters because the court's jurisdiction depends on the applicant being an eligible person.
Who counts as each:
- › Spouse: a husband or wife, a civil partner, or a de facto partner who lived with the deceased as a couple for a continuous period of at least two years ending on the death.
- › Child: includes a stepchild and an adopted child. The Succession Act also provides that the relationship of stepchild and step-parent stops on the divorce of the deceased and the stepchild's parent, the termination of their civil partnership, or the ending of their de facto relationship.
- › Dependant: a person who was being wholly or substantially maintained or supported by the deceased at the time of death, and who is a parent of the deceased, the parent of a surviving child of the deceased who is under 18, or a person under 18.
A former spouse who was receiving, or entitled to receive, maintenance from the deceased at the time of death may also be eligible, under Queensland's Succession Act.
What are the time limits for a family provision claim in Queensland?
The time limits in Queensland's Succession Act are among the most important rules in this area of law. Two separate periods apply, and both are set by the Act.
The two periods:
- › Six months, written notice (s 44(3)(a)): a personal representative who distributes the estate six months or more after the death, without notice of an application or intended application, is protected from a later claim. Written notice of an intended application is therefore given within six months of the date of death, even before a decision to file is made.
- › Nine months, instituting proceedings (s 41(8)): proceedings must be started within nine months of the date of death, unless the court otherwise directs. An application made after that period requires the court's leave, which is discretionary and not automatic.
The Queensland Public Trustee also confirms that by law there is a waiting period of six months for people to come forward and contest or make a claim on a will. The practical effect is that giving written notice early preserves options, even where an applicant is still deciding whether to proceed.
How does a family provision application generally work in Queensland?
Step 1: Talk to us
Get in touch and we will explain how the process generally works and what the next steps look like for a family provision matter.
Step 2: Consider eligibility and the estate
We review whether the applicant is an eligible person under Queensland's Succession Act, gather information about the estate's assets and liabilities, and consider the applicant's needs and circumstances in light of what the will or intestacy rules provide.
Step 3: Give notice and file the application
We give written notice of the intended application to the personal representative within the six-month period, then prepare and file the application in the Supreme Court of Queensland's Wills and Estates List. Under Queensland's court rules a first directions hearing is listed no later than 28 days after filing, with directions aiming to encourage early resolution through mediation.
Step 4: Attend mediation or proceed to trial
Queensland Courts refer most family provision claims to mediation at the earliest practical time. Where the matter does not resolve at mediation, we make directions for a trial. The court may cap the costs a party can recover, including where the net distributable value of the estate is less than $500,000, according to Queensland Courts.
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What does the court weigh when deciding a family provision claim in Queensland?
The Queensland Public Trustee sets out several matters the court considers when deciding whether adequate provision has been made and, if not, what provision to order.
Factors the court weighs:
- › The applicant's needs: current financial position, age, health and any disability affecting capacity to earn income or meet expenses.
- › The relationship: the nature and length of the relationship between the applicant and the deceased, and whether the deceased expressed any wishes about the applicant.
- › Others with claims: the needs of the beneficiaries under the will or intestacy rules, and of any other eligible persons who may apply.
- › The size of the estate: what is available affects what the court can order, and the costs of the proceedings themselves reduce what is left to distribute.
There is no formula. The court decides on the facts and circumstances of each individual case, and a solicitor can advise on how these considerations are likely to apply in a particular situation.
"A family provision claim is not about what a person feels they deserve. The court asks whether adequate provision was made for proper maintenance and support, and that is a factual question answered by the evidence."
Jade Kickbusch, Principal, Brookwater Legal
When does a family provision application not apply to a claim on an estate?
Not every concern about an estate is a family provision matter. Understanding the boundaries helps identify the right course of action early.
A family provision claim is not the right pathway where the real concern is that the will was not validly made. Where there is a genuine question about the deceased's capacity at the time the will was signed, or about undue influence or fraud in its making, the appropriate challenge is a validity claim, not a family provision application. The two processes are different and the evidence required differs substantially.
A family provision claim is also not available to people who are not eligible persons under Queensland's Succession Act. An adult child of a de facto partner of the deceased, for example, is not automatically an eligible person. Whether a relationship with the deceased gives rise to eligibility as a dependant turns on the specific circumstances and the Act's definition, which a solicitor can assess.
Finally, certain assets generally fall outside the estate that the court can deal with. Joint assets pass automatically to the surviving owner by survivorship and do not form part of the estate, according to Queensland Courts. Superannuation may be paid directly by the fund to a nominated beneficiary rather than into the estate, as the Queensland Public Trustee explains.
Frequently Asked Questions
Who can make a family provision application in Queensland?
Under Queensland's Succession Act, eligible applicants are a spouse, a child (including a stepchild or adopted child) and a dependant of the deceased. A dependant is a person the deceased was substantially maintaining at the time of death who meets one of the Act's additional criteria.
How long do you have to make a family provision claim in Queensland?
Written notice of an intended claim is generally given within six months of the death, according to Queensland's Succession Act (s 44(3)(a)). Proceedings must be started within nine months of the date of death under s 41(8). Applications made after that period require the court's leave.
Can a family provision application be made where there is no will in Queensland?
Yes. Under Queensland's Succession Act a family provision application can be made even where the deceased died intestate and the estate is being distributed under the intestacy rules.
What is the difference between contesting a will and challenging its validity in Queensland?
A family provision claim accepts the will as valid and asks for more from the estate. A validity challenge argues the will was not properly made, for example due to lack of capacity or undue influence. The two processes are different and involve different evidence.
How does mediation work in a Queensland family provision claim?
Queensland Courts refer most family provision claims to mediation at the earliest practical time after the first directions hearing. If mediation does not resolve the matter, the court makes directions for a trial. The mediator's fee is paid in the first instance out of the estate, according to Queensland Courts.
Do you need a solicitor for a family provision application in Springfield or Ipswich QLD?
A solicitor plays an important role in assessing eligibility, giving notice within the time limits, preparing and filing the application, and representing the applicant at mediation or trial. Queensland Courts note that succession law can be complex and often requires specialist legal advice. Our conveyancing and estates team helps clients across Greater Springfield and Ipswich with estate matters.
How long does a family provision claim generally take to finalise in Queensland?
The Queensland Public Trustee notes it usually takes an average of 12 months to finalise a deceased estate. A contested family provision claim that proceeds to trial will generally take longer, as the court process involves directions hearings, mediation and, if unresolved, a final hearing.
Your Next Steps
A family provision application is one of the more time-sensitive matters in estates law in Queensland. The six-month notice period and the nine-month filing deadline under Queensland's Succession Act can pass quickly while a family is grieving and working through an estate, particularly in Ipswich and Greater Springfield where estates often involve real property, business interests and superannuation across multiple institutions.
Every family provision matter is different, and that's exactly why it's worth a conversation. Make an appointment with the Brookwater Legal team or call (07) 3437 8555.
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External Resources
- Queensland Legislation - Succession Act 1981
- Queensland Courts - Amended Practice Direction 14 of 2023, Wills and Estates List
- Queensland Public Trustee - Family Provision Application
- Queensland Public Trustee - How to administer a deceased estate
- Queensland Courts - Wills and estates (grants of administration)
Brookwater Legal · This article contains general information only and does not constitute legal advice. It does not take into account your individual circumstances. You should obtain legal advice about your own situation before acting on anything in this article. Liability limited by a scheme approved under Professional Standards Legislation.
