Legal Project Management Plan & Checklist
Purpose: Welcome to the comprehensive legal practitioner roadmap for defending a deceased's estate against a Family Provision Application in Queensland. Designed explicitly for executor legal representatives, estate litigators, and trustee corporations, this guide covers the defence framework under Part 4 of the Succession Act 1981 (QLD). Additional forms are accessible via the Queensland Government Portal.
Jurisdiction: This guide applies to family provision defences in Queensland, Australia, and proceedings within the Supreme Court or District Court. The governing rules can be verified on the Queensland Government Portal or the state Legislation Registry.
Governing Legislation: - Succession Act 1981 (QLD) Part 4 (ss 40-44) - primary operative provisions - s 41: Main operative section - estate liable for adequate provision - s 41(3): Rateable burden - provision order generally falls rateably on whole estate unless court orders otherwise - s 44: Protection of personal representative - executor protected for distributions after 6 months if no notice received - 1999 - Form 46 (Affidavit), Form 15 (Notice of Address for Service for submitting appearances) - Rule 681 (costs), Rule 700A (proportionality) - Amended Practice Direction 14 of 2023 - costs affidavits, costs capping for small estates, mandatory mediation
CRITICAL: Queensland does NOT have notional estate provisions (unlike NSW Chapter 3 Succession Act 2006). Claims are limited to actual estate at death. However, sham transactions may be set aside - Re Permewan (No. 2) [2022] QSC 114 (gift-and-loan-back with no cash changing hands struck down). Also note: Re Permewan (No. 1) [2021] QSC 151 - executor removed where they controlled the trust that was party to the sham arrangement AND were the sole beneficiary (conflict of interest). Additional forms are accessible via the Queensland Government Portal.
Process at a Glance: Defending an estate requires the executor to act objectively as a fiduciary while protecting beneficiaries. (1) Audit the claimant's notice - verify it was served within 6 months (s 41(8)). If no notice received within 6 months, executor is protected under s 44 for any distributions made. (2) Immediately halt all estate distributions upon receiving notice. (3) Audit estate assets and calculate net value. (4) Review the applicant's Form 5 and Form 46 once served - assess Singer v Berghouse Stage 1 (adequacy) and the strength of any disentitling conduct defence. (5) Interview beneficiaries and assess competing needs. (6) Draft executor's Form 46 responding affidavit and beneficiary affidavits. (7) Issue a Calderbank offer before mediation. (8) Attend mandatory mediation under Practice Direction 14 of 2023. (9) If unresolved, prepare for trial. Key costs principle: family provision costs depend on the 'overall justice of the case' (Singer v Berghouse), NOT the standard 'costs follow the event' rule. Executor's indemnity from the estate is NOT absolute - frivolous defence can lead to personal costs orders. Practitioners should check the official Queensland Government Portal and Queensland Legislation Registry for regular procedure updates.
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Wills & Estates: Family Provision Application (Respondent) matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for TRUSTS_ESTATES cases, outlining the standard DISPUTE_LITIGATION process. Utilize these tracking templates to manage your legal cases efficiently.
Cease distribution of the estate upon receiving notice and verify the notice was served within the 6-month statutory deadline under s 41(8). If notice was NOT received within 6 months, advise executor of s 44 protection.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
CRITICAL: Queensland has NO notional estate provisions (unlike NSW Chapter 3, Succession Act 2006). Claims are limited to the actual estate at death.
Re Permewan (No. 2) [2022] QSC 114 - a 'gift and loan-back' scheme with no cash actually changing hands was set aside by the court.
Re Permewan (No. 1) [2021] QSC 151 - executor was removed because he controlled the trust that was party to sham transactions AND was the sole beneficiary (conflict of interest).
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
s 44 protection: executor protected for distributions made after 6 months if no notice received. However, a late application with time extension remains possible - Mortimer v Lusink [2007] QSC 195 establishes the court's discretion to extend time.
6-month notice deadline and 9-month filing deadline are the critical statutory dates under s 41(8).
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
Section 44 provides protection for distributions made BEFORE notice is received (after 6 months). Once notice is received, the executor must hold the estate pending resolution of the claim or risk personal liability.
Evaluate the originating application against the Singer v Berghouse two-stage test, assess the competing needs of the principal beneficiaries, investigate any disentitling conduct, and determine the strength of the estate's defence.
Coordinate the collection and review of all financial documentation required for disclosure, including statements, valuations, and supporting schedules as mandated by the rules.
Draft and file the executor's asset affidavit (Form 46) detailing estate assets, liabilities, and administration costs, plus beneficiary affidavits detailing their financial positions and competing needs.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
Conduct a thorough review of all filed materials to ensure compliance with court requirements, verify service obligations have been met, and prepare for the next procedural milestone.
Assess the strategic considerations for interim applications, prepare supporting evidence, and draft the necessary documentation for urgent or time-sensitive relief sought.
Madjeric v Madjeric [2025] QDC 126 - testator's statutory declarations explaining reasons for distribution carry weight but are NOT determinative.
Disentitling conduct defence: especially for alleged criminal offences, the evidentiary standard is high. The onus falls on the party asserting the defence.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.