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How to Bring A Family Provision Application for Inadequate Provision in a Will

What is a Family Provision Application, how long do you have to file one, and how can you make use of it to contest what has been left to you in a Will? Butler McDermott Lawyers, one of the leading Wills and Estates Law Firms in Sunshine Coast has the answers.  

What is a Family Provision Application?

Under section 41 of the Succession Act 1981 (Qld) recognised in Australia under the Family Law Act 1975, the court has the power to order further provision from an estate if the Deceased’s Will fails to make adequate provision for their spouse, child and / or dependant.

Who can bring a Family Provision Application?

Eligible persons can have their Wills and Estates lawyer make an application to the court of law seeking that adequate provision be made for their proper maintenance and support. An eligible person is:

  • Spouse (including husband / wife, de facto partner and civil partner)
  • Child (including stepchildren and adopted children)
  • Dependent (someone who is maintained by the Deceased during their lifetime).

What are the time limitations for bringing a Family Provision Application?

Part 4 of the Succession Act 1981 (Qld) sets out the relevant timeframes for eligible claimants wishing to bring a Family Provision Application. Eligible claimants have six months from the date of the Deceased’s death to notify the Legal Personal Representatives of the estate about their intention to bring an application. An application must then be filed by lawyers and served within nine months from the Deceased’s date of death.

What considerations do the courts make in relation to bringing a Family Provision Application?

There are several considerations that a QLD court of law makes in relation to Family Provision Applications. Firstly, the law courts ascertain if adequate provision has been made for the Applicant’s proper maintenance and support. If adequate provision has not been made under Family Law, the courts will make several considerations, including:

  • The size of the estate.
  • The circumstances of the Applicant, namely, the Applicant’s age, health and financial status.
  • The strength of any competing claims.
  • Any disentitling conduct on behalf of the Applicant.
  • The relationship between the Deceased and the Applicant.

Please note that this list is not exhaustive, and the law courts may consider a number of other factors that are deemed to be relevant.

Can I bring a Family Provision Application after nine months?

If you do not file an application within nine months, you may still be able to bring a claim for further provision. You may file an application “out of time” after the nine-month timeframe has lapsed.

When making an “out of time” application, it is at the court’s discretion whether to extend the nine-month timeframe. There are several considerations that the law courts will make when determining if an application should be made out of time, such as:

  • The duration of the delay.
  • The reason for the delay.
  • The strength of the Applicant’s case.
  • If the Estate has already been distributed.
  • Any unconscionable conduct on behalf of the Applicant.

Butler McDermott’s Family Lawyers on the Sunshine Coast have extensive experience in estate litigation matters, and other Family Law matters. Should you require the assistance of our Wills and Estates law firm, or would like more information about Family Provision Applications, please contact our experienced Wills & Estates lawyer.  

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Simone Faunt


Brent King


Brent works as a litigation lawyer, providing litigation legal advice in relation to both civil and criminal law matters, including:
  • Defamation Claims
  • Contract and Debt Disputes
  • Building and Construction Disputes
  • Planning Matters
  • Criminal Law and Traffic Legal Matters
Having grown up on the Sunshine Coast and joining Butler McDermott after the completion of his studies, Brent appreciates the needs of our clients, and brings a particularly commercial approach to litigation. Brent is a member of the Queensland Law Society and the Sunshine Coast Law Association, and has litigated a wide variety of matters in the Magistrates, District and Supreme Courts.

Peter Boyce


Peter has been practising as a Nambour Solicitor since 1977 and joined Butler McDermott Lawyers the same year.

With over 40 years practicing as a Sunshine Coast lawyer, Peter has extensive knowledge of various facets of law.

He has practised in all areas of litigation and has special interests in:

  • Criminal law
  • Civil and Commercial litigation
  • Retirement Village matters
  • Sports law
  • Resumption of land and compensation claims


Peter has specialised knowledge of and experience with resumption matters as a result of the Traveston Dam project, road corridors, Main Roads and water pipeline. He is renowned for his professional approach and is an experienced and determined advocate.

Al Upton


After arriving at Butler McDermott Lawyers in 2016, Al quickly progressed to running our Wills and Estates section and has successfully litigated disputes in the Supreme and District Courts of Queensland in the early stages of his career.

In the years that followed Al has now moved to assist our clients with commercial and property matters having achieved positive outcomes in that area as well as general litigation. Al’s experience has him uniquely placed to provide quality advice in the areas of property, commercial, wills and estates and general litigation.

Al is involved in giving back to the community, sitting on the board for the Daniel Morcombe Foundation and Sundale Community Foundation. He otherwise became a director of Butler McDermott Lawyers in November 2021.