Updated: 2 days ago
In Queensland, if a person has been left without 'adequate provision' from a deceased estate, they can contest the Will if they are an eligible person. This is usually referred to as a 'Family Provision Application', and it sits at the heart of succession law because of the freedom of attestation. However, this freedom is subject to a moral obligation to provide for one's immediate family and dependants.
Our team at RHC Solicitors has practised Wills and Estates Law since 1983. We're here to guide you through the process to the best possible outcome.
In This Article:
Can I Contest a Will in Queensland?
If you believe a Will has not made adequate provision for your proper maintenance and support, you may be able to apply to the Supreme Court of Queensland for a family provision order. This is commonly called a family provision application.
A family provision application does not usually challenge whether the Will is valid. Instead, it asks the court to make provision for an eligible person from the deceased estate. A claim may also be possible if the person died without a Will. Eligibility to apply does not guarantee the court will make an order.
Queensland law applies to Queensland claims. Rules and time limits differ between Australian states and territories, so the deceased's location and the location of their assets may matter. This article is general information, not legal advice.
Who Can Make a Family Provision Claim in Queensland?
Queensland law limits family provision claims to certain eligible people. These include:
A Spouse
This may include a husband or wife, a civil partner, or a de facto partner who lived with the deceased as a couple on a genuine domestic basis for at least two years ending on the deceased’s death. In some circumstances, a former spouse or civil partner who is a dependant may also qualify.
A Child
This includes a biological or adopted child. A stepchild may qualify, but the legal relationship can depend on whether the relationship between the deceased and the child’s parent had ended before the deceased died.
A Dependant
This may include a person under 18, the deceased's parent, or the parent of the deceased’s surviving child under 18, if the deceased wholly or substantially maintained or supported them when they died.
These categories have specific legal meanings. If your relationship to the deceased is not straightforward, get advice about whether you qualify. The Queensland Succession Act sets out the eligibility rules.
The terms "spouse", "child" and "dependant" are defined in the Succession Act 1981 (Qld).
Does Being Eligible Mean I Will Receive Something?
No. Eligibility means you may be able to apply; it does not determine the outcome.
The court must consider whether the Will or intestacy arrangements made adequate provision for your proper maintenance and support. The court has discretion to decide whether to make an order and, if so, what provision is appropriate.
Adult children can be eligible to apply, but this does not mean every adult child is entitled to an inheritance or that the court will change the distribution. Each case turns on its circumstances and the estate available.
Unsure Whether You’re Eligible to Make a Family Provision Claim?
Eligibility and time limits depend on your circumstances. Contact RHC Solicitors to discuss your situation and understand the next steps.
What Will the Court Consider?
There is no fixed amount or formula for family provision. Depending on the case, relevant matters may include:
your financial position, needs, age and health;
the size and nature of the estate and any liabilities;
your relationship with the deceased;
any financial or other support the deceased provided to you;
the circumstances and needs of other eligible people and beneficiaries; and
statements, promises or other evidence that may help explain the deceased’s intentions.
The court considers the evidence as a whole. A close relationship, a promise, or a contribution to the deceased’s life or property does not, by itself, guarantee an order. The legal consideration is whether the deceased made adequate provision for the eligible person’s proper maintenance and support.
Defining 'adequate provision' is difficult, and it varies from case to case.
Relevant Case Law
This underlying notion, however, concerns the testator's moral obligation.
In Bosch v Perpetual Trustee Co (Ltd) (1983)[1] it was said that the legislation was designed to enforce the moral obligation of the testator to use his or her testamentary powers for making proper and adequate provision for the support of a person, having regard to the means and deserts of several claimants and the urgency of the various moral claims upon his or her bounty. Their Lordships in that case made it clear that the court must place itself in the testator's position and consider what he or she ought to have done to be wise and just rather than fond and foolish.
Over time, however, views on this idea of moral duty diverged.
In Permanent Trustee Co Ltd v Fraser (1995)[2], for example, the president of the Court of Appeal suggested that the courts should no longer use a sense of moral duty. In 2005, Chief Justice Gleeson of the High Court of Australia suggested that the moral duty test is a good test. He indicated that statutes should be read to determine when this idea of moral duty should be applied. Justices Callinan and Heydon also indicated that they found it convenient and generally useful to use the concept, and they have not been wrong to do so. Justices Gummow and Hayne, however, indicated that, in that case, the concept played no role.
Perhaps famously it was put quite well in the approach taken by the High Court in the case of Worladge v Doddridge,[3] where Williams and Fullagar JJ approved the following statement of the South Australian Supreme Court:
Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door — it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the backyard — it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail.[4]
How Can I Get a Copy of the Will?
Start by contacting the executor or the solicitor who holds the Will. In Queensland, the person who has possession or control of a deceased person’s Will must allow certain entitled people to inspect it or provide a certified copy, on payment of reasonable copying costs.
Entitled people may include someone named in the Will or an earlier Will, a spouse, parent, or child of the deceased, someone who may make a family provision application, and certain other people with a legal or financial interest in the estate.
Section 33Z of the Queensland Succession Act sets out the full categories.
What Are the Time Limits for a Queensland Family Provision Claim?
There are two important timeframes:
Give written notice of your intention to apply within six months of the person’s death.
File the court application within nine months of the person’s death.
The notice and the court application are separate steps. Missing a deadline may mean the court will not consider a claim, although the court has discretion in some circumstances. Do not assume the court will grant an extension.
Estate assets may be distributed while these time limits are running. If you are considering a claim, seek advice promptly and notify the estate’s personal representative in writing.
The Queensland Public Trustee’s family provision guidance explains the notice and filing timeframes.
Relevant Case Law
Section 41 of the Succession Act 1981 (Qld) sets out the time limit for bringing a family provision claim for proper maintenance and support of an eligible person: 9 months from the date of death.
Any attempt to administer the estate when there is notice of an intent to apply, or when you know of someone who could be an eligible person, is very risky. This is why, in such circumstances, we always advise waiting out the time limitation period.
In 1966, the Full Court, in Riechelmann v Donkin,[5] determined that where an estate has previously been fully administered, an application to extend time to bring such an application cannot succeed, because no estate remains from which further provision may be made. Their Honours, Hanger and Gibbs, took that view.
Justice Gibbs dealt with the issue comprehensively as follows (p 113, 114, 117):
“…the words ‘the estate of the testator’ [the statutory reserve from which further distributions may be ordered]… refer to all the property that belonged to the testator and has not yet passed to any other person absolutely and in his own right. Once the title of a beneficiary has become complete, so that he holds in his own right the property given to him by the will, that property ceases in any ordinary sense to be part of the estate of the testator, and becomes part of the estate of the beneficiary. The [Testator’s Family Maintenance Acts] give no power either to the Court to order that provision be made out of the estate of a beneficiary, or to the executors to recover former assets of the testator’s estate that have been distributed to the beneficiaries entitled to receive them. … Once an asset ceases to be an asset in the testator’s estate, and the beneficiary to whom it is given has received it in his own right, there is no power to subject that asset to the incidence of an order under the Acts, or to require the beneficiary to restore the asset to the estate or to make a payment in satisfaction of the order. … If a will requires the executors to hand over the residuary estate to other persons to hold it as trustees, once the estate has been so handed over it ceases to be the estate of the testator and is beyond the power of the Court to affect by an order under The Testator’s Family Maintenance Acts. If however the executors are themselves the trustees, once the estate has assumed the character of a trust estate it equally ceases to be part of the testator’s estate; in equity it belongs to the beneficiaries and the court is not empowered to divest what has been vested in them.”
Several single-judge decisions later followed that view.[6]
Further, in Holmes v Webb,[7] it was observed:
“The appellant seemed to accept, and it cannot be doubted, that final distribution to beneficiaries precludes the making of an order out of a deceased estate under Part IV of the Succession Act: see Re McPherson [1987] 2 Qd R 394. The position in other jurisdictions, such as New South Wales, and the decision of Easterbrook v Young (1997) 136 CLR 308, are to be distinguished on the basis of differences in the relevant legislation.”
You should be aware that, against this backdrop, a formidable array of differing State and Territory legislation exists. It was previously argued[8] that the High Court in Easterbrook v Young has overruled the Full Court in Donkin.[9] However, in Re McPherson,[10] Justice Connolly held that this could not conceivably be the case.
In Easterbrook,[11] the High Court considered the New South Wales Testator’s Family Maintenance and Guardianship of Infants Act 1916 (the Act). The Court’s approach was strongly influenced by provisions of that Act that have no counterpart in the Queensland legislation.[12] Their Honours remarked (p 316):
“…An actual distribution of the deceased’s property to persons beneficially entitled thereto shall not preclude the making of an order, even out of the distributed assets. Section 11(3) is explicable only on that footing. The Act in so providing assumes that the subsection at least covers the case where executorial or administrative duties have already been fully performed before such distribution has taken place. Thus, by the very terms of the Act, if an application is made in due time, the court may make provision out of any asset which came to the hands of the personal representative from the deceased through his death and the grant of probate or letters of administration.” “As we have emphasized, to give to the court’s order the effect of a codicil operating as on the death of the deceased, underlines the fact that the provision of the beneficial interest under the will is no bar to the court’s power to make provision for maintenance if needs be out of what is theirs or, but for the order, would be the beneficial property of a beneficiary under the will. Section 11(3) underlines the policy, which has the result that an actual distribution does not place the asset beyond the reach of the court’s power to order maintenance.”
As alluded to, in the matter of McPherson, Justice Connolly said these points were (p 398):
“obviously critical for the decision of the High Court”
Chief Justice de Jersey in the matter of Baker v Williams & Brunner[13] remarked on these points:
“But just as the High Court attended closely to the precise terms of the legislation in Easterbrook, so this Court is constrained by the terms of the Succession Act 1981. Easterbrook is not determinative of this matter, because it concerned materially different legislation, and because it did not lay down any general principle which is determinative of the present application notwithstanding the statutory differences.” “The proper construction of the Queensland legislation must condemn the respondent’s application. So does well-established appellate and first-instance authority in this State. Most of those decisions were given in the context of the High Court decision on which the respondent now depends. The basis on which it was distinguished is compelling.” “Those considerations aside, there is in the end the common-sensical desirability of preserving the certainty and integrity of an executorial administration regularly completed a long time before the current issues may have been raised.” “But that said, it is the proper construction of the Act, as confirmed in previous unassailable decisions of this Court, which determines the fate of this application, and for reasons previously traversed, that means the respondent’s s 41 application must fail.”
We therefore draw the inference that, if any litigation is commenced outside the limitation period in the State of Queensland, and where the estate is administered, it is (in all probability) unlikely to succeed. But this does not mean it won’t succeed, as the courts have discretion and each case is different.
Want to Make a Family Provision Claim?
Don’t sit back idly, waiting and hoping, if you have been left out under a Will. You could be prevented from making a claim.
Originally Published: 14 October 2019
Last Updated: 13 October 2026
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current, and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication are those of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
References
[1] [1983] AC 463.
[2] 36 NSWLR 24.
[3] (1957) 97 CLR 1.
[4] Ibid, quoting Re Harris (1936) 5 SASR 497, 501.
[5] [1966] Qd R 96.
[6] Re Burgess [1984] 2 Qd R 379; Re Oakley [1986] 2 Qd R 269; Re McPherson [1987] 2 Qd R 394; Re Prufert (unreported, 4 April 1991, OS 123/1991); and Re Parry (unreported, 11 March 1991, 23/1990).
[7] (unreported, Court of Appeal, 18 August 1992, OS 542/1989).
[8] Baker v Williams & Brunner (as executors of the estate of Baker) [2007] QSC 226.
[9] (1977) 136 CLR 308.
[10] [1987] 2 Qd R 394.
[11] Ibid.
[12] Baker v Williams & Brunner (as executors of the estate of Baker) [2007] QSC 226.
[13] (as executors of the estate of Baker) [2007] QSC 226.
Scott A. Green ©
