A family provision claim is the legal mechanism that allows eligible persons to ask a court to override a will – or the intestacy rules – and order that the estate provide for them where it has not, or not adequately.
It is the most common form of estate litigation in Australia, and it operates differently in Queensland and New South Wales in ways that matter practically – especially for families in the Coolangatta-Tweed corridor who often have connections to both states.
This guide compares the key elements of family provision claims in each jurisdiction: who qualifies, what courts look at, what success actually looks like, and why the border between the two states can produce meaningfully different outcomes.
The legislation
- Queensland: Part 4 of the Succession Act 1981 (Qld).
- New South Wales: Chapter 3 of the Succession Act 2006 (NSW).
Despite sharing the same broad purpose – ensuring the deceased meets a moral obligation to provide for eligible family members – the two Acts differ in significant respects.
Who is eligible: Queensland vs New South Wales
Queensland – eligible persons
Under section 41 of the Succession Act 1981 (Qld), eligible applicants are:
- Spouse: married partner, de facto partner in a genuine domestic relationship of at least two years (or with a child), former spouse receiving financial support, and same-sex partners on the same basis.
- Child: including adult children, adopted children, and stepchildren where the deceased stood in the position of a parent.
- Dependant: a person substantially maintained or supported by the deceased at the time of death – the financial dependence must be real and substantial.
New South Wales – eligible persons
Under section 57 of the Succession Act 2006 (NSW), eligible applicants include all of the above and additionally:
- Grandchildren of the deceased.
- Members of the same household as the deceased at any relevant time.
- Persons in a close personal relationship with the deceased – including, in some cases, close friends or carers.
This broader New South Wales class means that in NSW, claims succeed from applicant categories that would have no standing in Queensland. A grandchild left out of a will – regardless of their financial need – has independent standing in NSW. In Queensland, that same grandchild must establish financial dependence to have standing at all. This difference is critical for families on the border where assets and relationships cross both states.
The additional standing hurdle in New South Wales
For applicants other than a spouse, de facto partner, or child, section 59 of the Succession Act 2006 (NSW) requires the court to also find ‘factors that warrant the making of the application’ before the merits of the claim can be considered. This two-stage test acts as a filter for claims from the broader eligible categories. The court considers the nature of the relationship, the degree of financial dependence, any contribution to the deceased’s welfare, and whether the claim has substantive merit before allowing it to proceed.
What courts consider when assessing a claim
Both Queensland and New South Wales courts exercise a broad discretion, informed by a similar (though not identical) list of statutory factors. Courts in both jurisdictions weigh:
- The relationship between the applicant and the deceased – its nature, duration, and quality.
- The applicant’s financial resources – assets, income, earning capacity, debts, and both present and future financial needs.
- The size of the estate – a larger estate creates a stronger moral obligation; a small estate limits what the court can do.
- Competing claims – what other eligible persons and beneficiaries need from the same estate.
- Contributions the applicant made to the estate or to the welfare of the deceased during their lifetime.
- Conduct – the applicant’s conduct toward the deceased, including any estrangement and its cause.
- Gifts or loans the applicant received from the deceased during their lifetime.
- Testator’s reasons – if the deceased left reasons for excluding the applicant, courts give them weight (though not automatically decisive weight).
What does ‘adequate provision’ actually mean?
Neither Act defines ‘adequate provision’ – courts determine it case by case. The question is not what the applicant wants or deserves in the abstract; it is what a wise and just testator would have provided, having regard to all the circumstances of the case. Courts look at the applicant’s needs – for housing, health, security, and the kind of life they were accustomed to – and weigh them against the deceased’s assets and obligations.
Successful claims do not simply rewrite the will. The court generally makes the minimum provision necessary to address the applicant’s legitimate claims – not an equal share, and not a windfall. What constitutes adequate provision in a $500,000 estate looks very different from the same question in a $5,000,000 estate.
Time limits compared
| Queensland | New South Wales | |
|---|---|---|
| Notice to executor | Within 6 months of death | Not required |
| File in court | Within 9 months of death | Within 12 months of the date of death (not the date of probate) |
Neither jurisdiction is generous with extensions. Both require genuine reasons for delay, and both take into account whether the estate has already been distributed when considering extension applications.
The notional estate difference
New South Wales allows family provision claims against assets the deceased transferred before death – superannuation, joint tenancy property, and gifts made without full consideration. Queensland has no equivalent concept. In practical terms: a Queensland-domiciled deceased with a modest formal estate and a large superannuation balance paid to a sibling may present very few options for an eligible child in Queensland. The same factual scenario in New South Wales potentially supports a notional estate claim.
For families on the Queensland-New South Wales border, the location of the deceased’s assets and their domicile at death can fundamentally alter what remedies are available.
Costs and settlement
The vast majority of family provision applications settle before trial – estimates suggest around 80% resolve at or before mediation in both jurisdictions. A successful applicant in Queensland or New South Wales typically receives a costs order from the estate. An unsuccessful applicant who proceeds to a hearing risks an adverse costs order. Calderbank offers – written settlement offers marked ‘Without Prejudice Save As To Costs’ – play a critical role in costs strategy in estate litigation: a party who unreasonably rejects a Calderbank offer and then fails to do better at trial may face an order for indemnity costs.
Frequently asked questions
QI was left out of the will entirely – does that strengthen my claim?
Being left out entirely establishes that no provision was made – which is the starting point of a family provision claim. But complete exclusion does not automatically mean success. Courts also consider the reasons for exclusion, the applicant’s financial circumstances, the estate’s size, and the competing needs of other beneficiaries. A wealthy adult child left out of a modest estate may fail. A financially dependent adult child in genuine need may succeed even against a deliberate exclusion.
QCan multiple family members make claims at the same time?
Yes – and this is common. When multiple eligible persons file claims, the court assesses them collectively and makes provision for those with legitimate claims, having regard to the overall estate size. Competing claimants may negotiate between themselves to reach a global settlement. Where claims are numerous and the estate is modest, the practical reality is that all claimants may receive less than they sought, or some claims may not succeed at all.
QDoes being estranged from the deceased end my claim?
Estrangement is a factor – not a bar. Courts ask why the estrangement occurred and who bears responsibility for it. An adult child who was abused or neglected by the deceased and then had no contact may still have a strong moral claim on the estate. An adult child who abandoned the deceased parent without cause and had no contact for decades faces a much harder argument. The circumstances of the estrangement – not the estrangement itself – determine its weight.
Disclaimer: The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice. Readers should seek legal advice about their specific circumstances.
