Family Provision Claims in Queensland and NSW: How the Rules Differ
Draft for review
A family provision claim is an application by an eligible person seeking further provision from a deceased estate. The claim may arise because the person was left out of the Will, received a smaller benefit than expected, or received provision that is inadequate in the circumstances.
The rules are not identical across Australia. Queensland and New South Wales each have legislation governing family provision claims, but the categories of eligible applicants, statutory language, time limits and treatment of estate assets differ.
Anyone considering a family provision claim in Queensland or NSW should obtain legal advice promptly. Limitation periods run from the date of death, and a delay can materially affect the claim.
What does a family provision claim involve?
A family provision claim does not generally ask the court to decide whether the deceased’s Will was valid. Instead, the applicant accepts that the Will or intestacy provisions apply but argues that they do not make adequate provision for the applicant’s needs.
The court generally considers two broad questions:
Is the applicant an eligible person under the relevant legislation?
Has the deceased made adequate provision for that person’s proper maintenance, support or advancement in life?
Being related to the deceased does not automatically establish a successful claim. The court exercises a discretion after considering the applicant’s circumstances, the estate, the deceased’s obligations and the competing claims of other beneficiaries.
The size of the estate is also important. A claim involving a modest estate may produce a different result from a claim involving substantial property, investments, superannuation or business interests.
Queensland family provision claims
Queensland family provision claims are primarily governed by section 41 of the Succession Act 1981 (Qld).
The Queensland test is whether the deceased’s Will or intestacy provisions made adequate provision for the proper maintenance and support of an eligible person.
Who can make a claim in Queensland?
The principal categories are:
a spouse, including a qualifying de facto partner;
a child, including a biological or adopted child and, in defined circumstances, a stepchild; and
a dependant who falls within the statutory definition.
A Queensland spouse may include a married spouse, a qualifying de facto partner or a registered civil partner. A former spouse may also be eligible in limited circumstances, including where the person was receiving, or was entitled to receive, maintenance.
A child does not necessarily lose eligibility merely because they are an adult. An adult child may still bring a claim, but the outcome will depend heavily on factors such as financial need, health, age, relationship history, contributions and the needs of other beneficiaries.
The dependant category is narrower than a general concept of financial reliance. It generally concerns a person who was wholly or substantially maintained by the deceased and who falls within a specified relationship category, such as:
the deceased’s parent;
the parent of the deceased’s minor child; or
a minor who was maintained by the deceased.
A person should not assume that financial assistance alone makes them eligible. The statutory definition and evidence of the relationship must be examined carefully.
What will a Queensland court consider?
Queensland courts may consider matters including:
the applicant’s financial position and ongoing needs;
the applicant’s age and health;
the nature and duration of the relationship with the deceased;
the size and nature of the estate;
the deceased’s obligations to the applicant and other beneficiaries;
contributions made by the applicant to the deceased or the estate;
the level of support previously provided by the deceased;
the financial circumstances of competing beneficiaries; and
relevant conduct or estrangement.
The question is not simply whether the distribution appears unequal. A deceased person may have legitimate reasons for treating beneficiaries differently. The court must decide whether the provision is adequate in the circumstances, having regard to the applicant’s proper maintenance and support.
Queensland time limits
Queensland has two important deadlines:
written notice of an intended claim should generally be given to the executor within six months of the date of death; and
the application should generally be filed in the Supreme Court within nine months of the date of death.
These deadlines are strict in practice. An extension may be possible in limited circumstances, but it should never be assumed that an extension will be granted. The risk is particularly serious if the estate has already been distributed.
NSW family provision claims
New South Wales family provision claims are governed by Chapter 3 of the Succession Act 2006 (NSW), particularly sections 57 to 61.
The NSW test refers to adequate provision for the applicant’s maintenance, education or advancement in life. This language is broader than the Queensland reference to proper maintenance and support, although both jurisdictions require a detailed assessment of the applicant’s circumstances and the estate.
Who can make a claim in NSW?
The NSW legislation recognises a broader range of eligible persons. They may include:
the spouse of the deceased;
a de facto partner;
a child, including an adopted child;
a former spouse;
a dependent grandchild;
a person who was dependent on the deceased and was a member of the same household; and
a person who was living with the deceased in a close personal relationship at the time of death.
This broader statutory framework is one of the key differences when comparing a family provision claim in Queensland and NSW.
However, eligibility is only the first step. Some categories, particularly former spouses and certain non-immediate family or household relationships, may require additional evidence about dependency, the nature of the relationship or other factors warranting an order.
What will a NSW court consider?
Section 60 of the Succession Act 2006 (NSW) contains a detailed list of matters the court may consider. These include:
the nature and duration of the relationship;
the obligations owed by the deceased to the applicant and other beneficiaries;
the size and nature of the estate;
the applicant’s financial resources, needs and earning capacity;
the applicant’s age and health;
any physical, intellectual or mental disability;
the financial circumstances of people living with the applicant;
contributions to the deceased or the estate;
provision already made during the deceased’s lifetime;
the financial needs and competing claims of beneficiaries;
the deceased’s reasons for making or omitting provision; and
the applicant’s conduct before and after the death.
The court can make different forms of order, including a lump-sum payment, periodic payments, a transfer of property or provision through a trust. The appropriate order depends on the evidence and the structure of the estate.
NSW’s notional estate framework
A significant difference is that NSW law may allow the court to consider notional estate in appropriate cases.
Notional estate provisions can, in certain circumstances, bring property or financial arrangements connected with the deceased into the pool available for a family provision order. This may be relevant where assets were transferred, disposed of or structured before death in a way that reduces the value of the estate.
Notional estate is a technical area. It does not mean that every asset previously owned by the deceased can automatically be recovered. The statutory requirements, timing of the transaction, value of the property and effect on the estate must be assessed.
Queensland does not have an equivalent notional estate regime in the same form. This is an important reason why estate planning and asset ownership should be reviewed according to the relevant state law.
NSW time limit
A NSW family provision application must generally be filed within 12 months of the date of death.
The period runs from the date of death, not from the date probate is granted, the date the Will is located or the date the applicant learns about the distribution.
The court may have power to extend time in limited circumstances. An extension is discretionary and should not be treated as a routine option. Legal advice should be obtained as soon as possible, even if the 12-month period has expired.
Key differences between Queensland and NSW
Issue | Queensland | New South Wales |
Main legislation | Succession Act 1981 (Qld), especially section 41 | Succession Act 2006 (NSW), Chapter 3 |
Main eligible-person categories | Spouse, child and dependant | Spouse, de facto partner, child, former spouse, dependent grandchild or household member, and close personal relationship |
Core test | Adequate provision for proper maintenance and support | Adequate provision for maintenance, education or advancement in life |
Notice deadline | Generally six months from death | No equivalent Queensland-style notice deadline, but the court application must be filed within the statutory period |
Court application deadline | Generally nine months from death | Generally 12 months from death |
Notional estate | No equivalent framework in the same form | Notional estate may be relevant in appropriate cases |
Court | Supreme Court of Queensland | Supreme Court of NSW |
What should an applicant do?
A potential applicant should gather relevant documents and seek advice urgently. Useful information may include:
the death certificate;
the latest Will and earlier Wills;
details of the estate’s property, bank accounts, businesses and liabilities;
evidence of financial need;
medical or disability evidence;
records of financial or caregiving contributions;
evidence of dependency or household arrangements; and
information about other beneficiaries and competing claims.
The executor should also avoid distributing an estate before potential claims have been properly considered. Distribution may make a claim more difficult and can expose an executor or beneficiaries to additional complications.
Estate planning can reduce uncertainty
A carefully drafted Will cannot always prevent a family provision claim. However, clear estate planning can reduce ambiguity and provide evidence of the deceased’s intentions.
Depending on the family circumstances, estate planning may involve:
reviewing property ownership;
preparing a current Will;
documenting reasons for particular distributions;
considering a testamentary trust;
preparing an Enduring Power of Attorney; and
reviewing beneficiary nominations and jointly owned assets.
Lightning Legal provides fixed-price Wills and estate planning services, including advice about Wills, testamentary trusts and related documents. The firm also provides direct contact with an experienced solicitor and clear communication about the legal process.
Conclusion
The difference between a family provision claim in Queensland and NSW is not limited to the filing deadline. The states use different eligibility frameworks, different statutory language and different approaches to the assets that may be available to satisfy an order.
Queensland generally focuses on spouses, children and defined dependants, with notice usually required within six months and proceedings filed within nine months. NSW recognises a broader range of eligible persons, has a 12-month filing period and may apply notional estate provisions in appropriate circumstances.
This article provides general information only and is not legal advice. Family provision law is fact-specific and can change through legislation and court decisions. Anyone considering a claim, acting as an executor or concerned about a proposed estate distribution should obtain independent legal advice urgently because limitation periods apply.
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