- (07) 5506 9800
- office@hqf.com.au
- 2/82 Marine Parade, Coolangatta, 4225, QLD
- PO Box 327, Coolangatta
WILLS AND ESTATES
Share this article
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.
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.
Under section 41 of the Succession Act 1981 (Qld), eligible applicants are:
Under section 57 of the Succession Act 2006 (NSW), eligible applicants include all of the above and additionally:
This broader NSW 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.
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.
Both QLD and NSW courts exercise a broad discretion, informed by a similar (though not identical) list of statutory factors. Courts in both jurisdictions weigh:
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.
Queensland: Notice to executor within 6 months of death; file in court within 9 months of death.
New South Wales: File in court 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.
NSW 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 QLD-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 NSW potentially supports a notional estate claim.
For families on the QLD–NSW border, the location of the deceased’s assets and their domicile at death can fundamentally alter what remedies are available.
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 QLD or NSW 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.
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.
Share this article
Please describe your enquiry below
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.
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.
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.