This article was written by Grace Blake Solicitor at W & G Lawyers.
Being left out of a Will is hard enough on its own. Where the deceased owned property in another country, or where you live overseas yourself, the position becomes more complicated, and the expensive mistakes tend to be made in the first few weeks, before anyone has thought to get advice.
A good deal of our estate work involves families whose assets and relationships cross borders. A parent who migrated to Queensland but kept an apartment in Shanghai. An adult child overseas who hears months after the funeral that they have been left out. Queensland’s family provision laws apply to these estates, but they cannot always reach every asset, and the result is often not what families expect.
What a Queensland Court Can Actually Reach
Most discussions of this topic start with eligibility, meaning whether you are a spouse, child or dependant under the Succession Act 1981 (Qld). That still has to be answered, and we have covered it in our earlier article on succession law litigation. Where there is an international element, though, a more basic question usually comes first, because it often decides whether a claim is worth running at all.
Australian law treats land differently from other property. Land and buildings are governed by the law of the country where they are located, while bank accounts, shares and personal belongings are generally governed by the law of the place where the deceased was domiciled at death.
In practice, a Queensland court can usually deal with real property here, even where the deceased died domiciled overseas. The reverse also holds. If the deceased was domiciled in Queensland but owned an apartment in another country, that apartment is governed by the law of that country, and a Queensland order will not redirect it.
There is a further limitation. Unlike New South Wales, Queensland has no power to draw assets back into an estate, so only property the deceased actually owned is available. That excludes jointly held property, assets held in a family trust, superannuation directed elsewhere by a binding nomination, and life insurance paid to a nominated beneficiary. This matters more in international estates than domestic ones, because offshore assets are so often held through exactly these arrangements.
Living Overseas Does Not Disqualify You
Eligibility turns on the relationship with the deceased, not on where you live. An adult child in Guangzhou, a widow who returned home after the funeral, or a dependent parent overseas may all qualify.
The difficulty is usually proof. Foreign marriages are generally recognised if validly formed under the law of the place where they took place, but you will need the documentation and a certified translation. De facto relationships are harder to establish where the couple lived in different countries for work, visa or family reasons.
Time Limits
Queensland’s time limits are among the tightest in the country, and they run from the date of death rather than the date you found out. The application must be filed in the Supreme Court within nine months. Written notice of your intention to claim should go to the executor within six months, because under Succession Act 1981 (Qld) an executor who distributes after those periods is protected from personal liability.
For families spread across countries these periods are genuinely short. News of a death does not always travel quickly, and gathering documents or arranging translations can take up what remains. The Court can allow a late application, but the onus is on you to explain the delay, and the discretion is of much less use once the estate has been distributed.
If you think you may have been left out, give the executor written notice and take advice straight away rather than waiting until you have the full picture.
Expectations From Other Legal Systems
Families from civil law countries often assume that a fixed share of the estate is guaranteed to them. That assumption is reasonable, because many legal systems do reserve a portion for close family. Queensland law works differently.
There is no fixed entitlement here, and not everyone can bring a claim. Under the Succession Act 1981 (Qld), only a spouse, a child, or a dependant of the deceased has standing to apply. Spouse includes a de facto partner, and child includes adopted and step-children of any age. If you fall outside those categories, however close you were to the deceased, a family provision claim is not available to you regardless of the merits of your situation.
Even where you do have standing, the outcome is not guaranteed. The starting point in Queensland is that a person may leave their estate as they choose, and a court will only interfere where the Will fails to make adequate provision for your proper maintenance and support. That is assessed on your circumstances, so an adult child who would be guaranteed a share in their home country may recover little or nothing here if they are financially comfortable or the estate is modest.
Practical Points
- Foreign language documents generally need certified translations before they can be used in evidence.
- Affidavits sworn overseas must be sworn before an authorised person, usually an Australian consular officer or a notary.
- Your own financial position is central to the claim, which means disclosing overseas assets and income, not only what you hold in Australia.
- A claimant living outside Australia may be ordered to provide security for the other side’s costs.
- The estate does not always pay the costs. In a smaller estate an unsuccessful applicant can finish up worse off.
Executors
If you are administering an estate with an international dimension, be careful about distributing early. Where beneficiaries or potential claimants are overseas, notice of a claim is more likely to arrive late, and the protection under the Succession Act 1981 (Qld) only apply where the timeframes have been properly observed.
Before making any distribution, you should have located and made contact with the overseas family members, identified the foreign assets, and formed a clear view about which parts of the estate fall within the reach of a Queensland court.
How W & G Lawyers Can Help
Being left out of a Will raises questions that are rarely straightforward, and the strict Queensland time limits mean the window to act is short. Where the deceased held assets overseas, or where you are living overseas yourself, those questions become more complex again.
We provide practical, clear advice so you know early where you stand. We can assist you to:
- Assess whether you have standing to bring a family provision application and whether a claim is worth pursuing;
- Give proper notice to the executor and protect your position within the six and nine month timeframes;
- Identify which assets form part of the estate and which fall outside the reach of a Queensland court;
- Gather and prepare the supporting evidence, including documents held overseas and certified translations; and
- Negotiate or mediate a resolution where possible, rather than proceeding straight to a contested hearing.
If you have been left out of a Will, or you are an executor who has received notice of a claim, we recommend obtaining advice as soon as possible so that your options remain open.
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Disclaimer
This article is general information only and does not constitute legal advice under Australian law. For advice specific to your situation, please contact W & G Lawyers. For further details, please click here to view our disclaimer.