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This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

What Does The Court Consider in a Family Provision Application? (Qld)


In Queensland, the Supreme Court assesses Family Provision Applications against a range of different measures. While there is no statutory list of assessment criteria, there is abundant common law precedent that informs the court’s decisions. This article lists the major factors that the court considers in these cases, and expands on these principles through a case study.

What Is A Family Provision Application?

When a testator has a duty to provide for someone and fails to fulfil their obligations, the disadvantaged person has a right to contest the will by making a Family Provision Application. This right is afforded through the Succession Act 1981, which allows eligible claimants to petition the Supreme Court for a redistribution of the deceased estate.

The court will only consider an application from an eligible claimant. In Queensland, those who are legally able to contest the will include the deceased’s spouse (de facto, married and registered) and child (biological, adopted and stepchild). The final category of eligibility is reserved for the dependents of the deceased, but only for those who are the deceased’s parent, a parent of the deceased’s child, or a minor child.

What Does The Court Consider?

When an eligible party makes a Family Provision application, the Supreme Court considers a number of factors related to the claimant’s circumstances and the nature of the deceased estate.

  1. The Deceased Estate
  • The size and total value of the deceased estate
  • The validity of competing claims against the deceased estate
  • Any contributions that the applicant or another beneficiary made to the deceased estate
  1. The Claimant’s Circumstances
  • The age of the claimant
  • The state of the claimant’s health
  1. Claimant’s Finances
  • The claimant’s financial position
  • If the deceased maintained the claimant at any point
  • Whether the claimant has a right to support from any other source
  • Whether the claimant has dependents
  1. Relationships
  • The nature of the relationship between the claimant and the deceased
  • Whether the two parties are estranged
  • The relationship between the deceased and other potential claimants
  1. Claimant’s Behaviour
  • Any conduct that might disentitle the claimant from provision
  • If the claimant has mistreated the testator in the past

Case Study: Niebour-Pott & Anon v Pott [2020]

In this case, the deceased estate was worth approximately $3.8 million with additional assets held in trust. The court took note that the deceased’s second wife, who was the executor of the will, spent over a million dollars defending the estate against various claims, diminishing the overall value of the deceased estate.

The persons making the Family Provision application were the children of the deceased from a relationship after the deceased had separated from his first wife, and before he married his second wife. The deceased provided for his second wife and their children in the will, but not for his other son and daughter. When the case came to trial, the beneficiaries of the deceased’s will (his second wife and children) failed to provide the court with evidence that they had a “needs-based” claim upon the estate that was greater than his other children.

The claimants lived together with their mother and were recipients of federal disability support pensions. Their mother had limited assets and income and was therefore unable to provide for all of her children’s expenses. The claimants were unable to provide for their own financial needs and were unlikely to secure employment due to developmental disability and ill health.

The claimants were both diagnosed as autistic, the daughter with a higher degree of function than her brother. They also both suffered from health issues, with the son recently recovering from treatment for Hodgkin’s Lymphoma, and the daughter recovering from a gynaecological condition that caused her chronic pain. Immediately prior to the trial, she had undergone surgery but the condition was likely to reoccur. The daughter also suffered from PTSD from sexual abuse at the hands of her maternal grandfather. The court considered these health complaints and judged that their lives would be more difficult given their medical conditions and psychological and developmental difficulties. These factors would affect their ability to find employment and incur expensive in-home care costs.

The relationship between the testator and the claimants was not close. The testator had only sporadic contact with his son and daughter until 2000, and while he maintained them financially until they reached eighteen, all contact ceased in that year. The court found that the estrangement was not the fault of the children, given their autism and ongoing litigation between their parents: as such, this factor was not worthy of consideration.

The court took note that the daughter had sworn false affidavits about her assets in her application. However, on balance the court found that it was understandable and should not weigh against the claimant.

The court concluded that the testator had not acted with sound judgment when he omitted his children from his will. It was not in keeping with community expectations for the deceased to abandon his vulnerable children to government assistance while providing for his other children who had other resources to meet their needs. The court ordered that each applicant should receive $400,000 from the deceased estate. It was satisfied that the new distribution preserved the spouse’s position as a major beneficiary, made reasonable gifts to his other children and recognised the claimant’s needs-based claims.

The court can consider any matter that it deems relevant when assessing a Family Provision Application. The contested wills team at Armstrong Legal can assess your case and advise you on the factors that are most likely to influence the court’s final decision. Please contact our offices on 1300 038 223 to make an appointment to talk to our experienced solicitors on this matter or any other legal issue.

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