When can a Family Provision Application be made?

A person wishing to bring a Family Provision Application can only do so if they comply with the relevant time limits set out in Part 4 Succession Act 1981 (Qld).

This means the potential applicant must notify the executor of their intention to bring a claim within six months of the date of death.[1]

Then, they must actually commence their Court proceedings, and serve or otherwise notify the executors within nine months from the date of death.[2]

Where one eligible applicant brings an application within time, this will satisfy the time limitations for any other applicants.[3]

If notice of a Family Provision Application is received, the executor should not make any distributions out of the estate before the time limits pass or the application has been resolved. If they do so, they may become personally liable to satisfy any order made by the court. This is obviously something most executors are keen to avoid.

An executor can safely distribute the estate:

  1. after the six month period has lapsed without notice of a Family Provision Application; or
  2. after nine months without any written notice of the commencement of an application.[4]

Further Reading

What happens if the Family Provision Application time limits have expired?

Case NoteFrey v Frey [2009] QSC 43

Executor’s Duties in a Family Provision Application

 

[1] http://www.austlii.edu.au/au/legis/qld/consol_act/sa1981138/s44.html

[2] http://www.austlii.edu.au/au/legis/qld/consol_act/sa1981138/s44.html

[3] http://www.austlii.edu.au/au/legis/qld/consol_act/sa1981138/s41.html

[4] http://www.austlii.edu.au/au/legis/qld/consol_act/sa1981138/s44.html