Family Provision Claims in Queensland: Who Can Claim Against an Estate?

In Queensland, when someone passes away, their estate is usually distributed according to their will. If no will exists, intestacy rules apply. However, some people believe the distribution is unfair. In these cases, they may make a family provision claim under the Succession Act 1981 (Qld).

A family provision claim lets eligible individuals seek a larger share of the estate. This applies when they believe the will, or intestacy rules, do not properly provide for their needs. This blog explains who can make a claim in Queensland and how the process works.

What is a Family Provision Claim?

A family provision claim is a legal action brought by an eligible person. The claim argues that the deceased’s estate does not adequately provide for their maintenance, education, or advancement in life. A claim can still proceed even when a valid will exists. This applies if the claimant believes they were left out or not properly provided for.

The court aims to ensure fair distribution of the estate. It considers the needs of people who depended on the deceased. It also considers those with a moral claim to the estate.

Who can make a Family Provision Claim in Queensland?

Not everyone can make a family provision claim in Queensland. Only certain people qualify as “eligible persons.” These individuals can challenge a will or intestate estate distribution. The following groups are usually eligible:

1. Spouses: This includes married and de facto partners. It can also include former spouses in some cases. Eligibility does not depend on the length of the relationship. A spouse may claim if the estate does not provide proper maintenance.
2. Children: Biological, adopted, and stepchildren may all qualify. This includes both adult and minor children.
3. Dependents: These are people who were wholly or substantially supported by the deceased at the time of death. They must also fall into one of the following categories:
   1. a parent of the deceased;
   2. a parent of the deceased’s minor child (under 18); or
   3. a person under 18 years old, such as a grandchild, niece, nephew, or foster child.

What does the court consider in a Family Provision Claim?

If you qualify as an eligible person, you can file a family provision claim. However, the court does not automatically increase your share of the estate. The judge considers several factors before making a decision:

1. The size and nature of the estate: The court assesses the estate’s value. It also considers whether enough assets exist to provide for the claimant without unfairly affecting other beneficiaries.
2. The deceased’s wishes: The will is important, but not decisive. The court examines whether the deceased’s wishes were reasonable. It also considers whether adequate provision was made for eligible people.
3. The claimant’s financial position: The court reviews the claimant’s financial needs. This includes income, assets, debts, and any external support.
4. The relationship between the claimant and the deceased: The court considers the nature of the relationship. Close or dependent relationships may strengthen a claim. Estrangement does not automatically prevent a claim.
5. The claimant’s contributions to the estate: The court considers whether the claimant supported the deceased. This may include financial help, care, or general assistance.
6. Any other relevant circumstances: The court may consider other relevant factors. This may include conduct, health issues, disabilities, or special needs.

Time limit for Family Provision Claims

There is a strict time limit for family provision claims in Queensland. A Notice of Claim must be given within 6 months of death. A claim must be filed within 9 months of death. After this period, the claimant may lose the right to challenge the estate. The court may grant an extension, but only in rare circumstances.

Conclusion

Family provision claims in Queensland provide a legal pathway for people who feel they were not properly provided for in a will or intestacy. Eligible people may include spouses, children, and dependents. Understanding eligibility and the legal process is essential. Early legal advice can improve the chance of a fair outcome.

Sean leads the Estate Litigation Team at Robbins Watson Solicitors, a law firm specialising in contested wills and estates. He holds a Masters Degree in Applied Law, specialising in Wills and Estates.

You can book a free case appraisal with Sean or one of our other Gold Coast Estate Litigation Lawyers here. You can also select Get Started Online to begin your estate dispute online.