10 Effective Strategies to Avoid a Family Provision Claim for Queenslanders

Protecting your estate from family provision applications in Queensland requires strategic planning, especially since 77% of claims are successful. While you can’t completely prevent someone from contesting your Will, you can significantly reduce the likelihood of a successful claim with the right approach. This article explores ten proven strategies to safeguard your legacy and ensure your final wishes are respected.

What Is a Family Provision Application?

A family provision application (FPA) is a legal request made to the Supreme Court of Queensland by an eligible person seeking further provision from a deceased person’s estate. This is typically on the grounds that the Will did not adequately provide for their proper maintenance and support.

The legal basis comes from the Succession Act 1981 (Qld). It grants courts the power to override a Will, or the rules of intestacy, where it finds that the deceased failed to make proper provision for someone they had a moral obligation to support.

Who Can Make a Family Provision Application?

The Succession Act limits who can apply. To be eligible, a person must fall within one of the following categories:

Eligible Person	Description
Spouse	Includes married, de facto (including same-sex), or civil partners
Child	Biological, adopted or stepchild (if treated as a child of the family); compose around 63% of claimants
Dependant	Any person financially dependent on the deceased at the time of their death

It’s important to note that stepchildren and former spouses may also be eligible, depending on their level of dependency and their relationship with the deceased.

The application must be lodged within nine months of the date of death. However, notice of the intention to make a claim must be given to the executor within six months. The court may allow late applications in exceptional circumstances—but don’t count on it.

Want to learn more about FPAs? Read our article here.

Litigation often arises from emotional grievances, perceived injustices, or misunderstandings. The good news is there are practical steps you can take to reduce the likelihood of a successful claim.

Step 1: Regularly Update Your Will

One of the easiest and most effective ways to prevent future disputes is to keep your Will up to date. Major life events—such as marriage, divorce, birth of a child, or death of a beneficiary—should always trigger a review of your Will.

Outdated Wills often overlook new relationships or fail to account for evolving financial or family circumstances. These oversights are a common cause of family provision disputes.

Tip: Set a reminder to review your estate plan every 2–3 years or after any major life event.

Step 2: Get Tailored Legal Advice

While online Will kits may appear cost-effective, they often lack the legal precision and foresight needed to address complex family dynamics. A qualified lawyer can, such as our Estate Planning Lawyers Gold Coast and Brisbane, can:

• Identify potential claimants.
• Structure your estate in a way that minimises risk.
• Ensure the Will complies with Queensland law.

Additionally, legal advice is crucial when dealing with blended families, overseas assets, or significant superannuation interests. Poorly drafted Wills or those prepared without legal guidance are much more susceptible to challenge.

Step 3: Consider Making Reasonable Provision—Even if Limited

Courts are more likely to intervene where an eligible person has been completely left out. Even a modest gift, when combined with a letter of explanation, can reduce the chances of a claim succeeding.

Providing some provision, however small, shows the testator acknowledged the person and considered their needs. Courts may be less inclined to override the Will if they see the decision was made after careful thought and not out of malice or neglect.

Step 4: Prepare a Statement of Wishes

A statement of wishes is not legally binding, but it offers insight into your decision-making. This can be especially useful if you’ve chosen to leave unequal amounts to your children or excluded someone altogether.

Such statements:

• Explain the rationale behind your decisions.
• Show that you considered the needs of each potential beneficiary.
• Can affect whether the court thinks you’ve left a fair share to the person making the claim.

Example: A parent may leave a smaller portion to one child who is financially independent, and more to another who is disabled and requires ongoing care.

Step 5: Consider Testamentary Trusts

A testamentary trust is a trust created in your Will that activates upon your death. These trusts provide asset protection, tax benefits, and controlled distribution—particularly helpful in complex family scenarios.

In terms of reducing family provision claims, testamentary trusts:

• Allow distributions to be managed over time.
• Make it harder for claimants to argue they’ve been unfairly treated.
• Can be structured to protect vulnerable or financially irresponsible beneficiaries.

Step 6: Structure Assets Outside the Estate (But With Caution)

Some assets—such as jointly owned property, superannuation with a binding death benefit nomination, and family trusts—may pass directly to others upon death.

By strategically structuring ownership and nominations, you can reduce the estate’s size, thereby potentially reducing the pool of assets available for a family provision claim.

However, Queensland courts have powers to examine transactions made to defeat potential claims. If it appears you deliberately stripped your estate to disadvantage someone, those transactions can be scrutinised or reversed.

Step 7: Promote Open Family Dialogue (Where Safe and Appropriate)

Talking about your Will may not be easy—but silence often leads to conflict. By discussing your intentions with your family, you give them a chance to understand your reasoning while you’re still around.

This is particularly important in:

• Blended family situations
• Where one child will receive more due to caregiving responsibilities
• When leaving assets to someone outside the immediate family

Clear communication reduces surprise, resentment, and suspicion—three common triggers of litigation.

Step 8: Deed of Family Arrangement (Where Disputes Are Foreseen)

If family tensions are already present, or if you anticipate future conflict, you may consider a Deed of Family Arrangement during your lifetime. This is a binding legal agreement made between family members about how an estate is to be distributed.

While not common for all estates, this may be useful when dealing with large family businesses, rural estates, or where one child has made significant contributions to the estate’s growth or management.

Step 9: Get Evidence of Testamentary Capacity

Another avenue through which Wills are challenged is by alleging the deceased lacked capacity or was subject to undue influence.

To avoid this:

• Get your Will drafted and witnessed professionally.
• Consider a medical certificate confirming capacity at the time of signing—especially if you are elderly or unwell.
• Avoid last-minute changes that could raise suspicion.

This protects the integrity of your Will and may deter challenges from disgruntled relatives.

Step 10: Understand How the Court Assesses Claims

It’s essential to understand that the court does not focus on fairness as you might define it. Instead, it applies a legal test based on whether the deceased made “adequate provision for the proper maintenance and support” of the applicant.

The court considers:

Factor	Explanation
Size and nature of the estate	Larger estates are more likely to accommodate further provision
Needs of the claimant	Income, expenses, health issues, and dependency
Competing claims	The needs and rights of other beneficiaries
Relationship with deceased	Closeness, length of relationship, contributions to estate, estrangement
Conduct of the applicant	The applicant’s behaviour may impact the court’s assessment

Understanding this test helps in making informed, strategic estate planning decisions that are harder to overturn.

Why Prevention Is Key

Contested estates can cause emotional and financial strain. Some of the consequences of a family provision application include:

• Long delays in distributing the estate
• Erosion of the estate’s value due to legal costs
• Strained or broken family relationships
• The stress of litigation for executors and beneficiaries

Prevention is not just a legal safeguard—it’s a compassionate act that can protect your loved ones from unnecessary conflict after you’re gone.

Conclusion

You may not be able to completely eliminate the risk of a family provision application, but careful planning can go a long way in protecting your estate and ensuring your wishes are respected. By keeping your Will up to date, seeking professional advice, providing reasonable explanation, and being strategic about your estate structure, you can significantly reduce the chances of a successful claim.

We Can Ensure Your Wishes are Respected

At ROC Legal, we work with clients across Queensland to create solid, legally sound estate plans that withstand scrutiny. We help you identify potential risks, consider all eligible claimants, and structure your Will and estate to reduce the risk of challenge. Whether you’re writing your first Will or reviewing an existing one, our experienced Brisbane and Gold Coast Estate Planning Lawyers are here to guide you with confidence and compassion. If you think you’ve been unfairly left out of a Will, or are considering a Family Provision Application, talk to one of our Will Dispute Lawyers Brisbane and Will Dispute Lawyers Gold Coast.

Let’s protect your legacy together. Book a confidential consultation today.