Queensland Consolidated Acts
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SUCCESSION ACT 1981 - SECT 41
Estate of deceased person liable for maintenance
41 Estate of deceased person liable for maintenance
(1) If any person (the
"deceased person" ) dies whether testate or intestate and in terms of the will
or as a result of the intestacy adequate provision is not made from the estate
for the proper maintenance and support of the deceased person’s spouse,
child or dependant, the court may, in its discretion, on application by or on
behalf of the said spouse, child or dependant, order that such provision as
the court thinks fit shall be made out of the estate of the deceased person
for such spouse, child or dependant.
(1A) However, the court shall not make
an order in respect of a dependant unless it is satisfied, having regard to
the extent to which the dependant was being maintained or supported by the
deceased person before the deceased person’s death, the need of the
dependant for the continuance of that maintenance or support and the
circumstances of the case, that it is proper that some provision should be
made for the dependant.
(2) The court may—
(a) attach such conditions to
the order as it thinks fit; or
(b) if it thinks fit—by the order direct
that the provision shall consist of a lump sum or a periodical or other
(c) refuse to make an order in favour of any person whose
character or conduct is such as, in the opinion of the court, disentitles him
or her to the benefit of an order, or whose circumstances are such as make
such refusal reasonable.
(3) The incidence of the payment or payments ordered
shall, unless the court otherwise directs, fall rateably upon the whole estate
of the deceased person or upon so much thereof as is or may be made directly
or indirectly subject to the jurisdiction of the court.
(4) The court may, by
such order or any subsequent order, exonerate any part of the estate of the
deceased person from the incidence of the order, after hearing such of the
parties as may be affected by such exoneration as it thinks necessary, and may
for that purpose direct the personal representative to represent, or appoint
any person to represent, any such party.
(5) The court may at any time fix a
periodic payment or lump sum to be paid by any beneficiary in the estate, to
represent, or in commutation of, such proportion of the sum ordered to be paid
as falls upon the portion of the estate in which the beneficiary is
interested, and exonerate such portion from further liability, and direct in
what manner such periodic payment shall be secured, and to whom such lump sum
shall be paid, and in what manner it shall be invested for the benefit of the
person to whom the commuted payment was payable.
(6) Where an application has
been filed on behalf of any person it may be treated by the court as, and, so
far as regards the question of limitation, shall be deemed to be, an
application on behalf of all persons who might apply.
(7) The personal
representative or the public trustee or the chief executive of the department
in which the Child Protection Act 1999 is administered, or any person acting
as the litigation guardian of a person under a legal incapacity, may apply on
behalf of a person under a legal incapacity in any case where such person
might apply, or may apply to the court for advice or directions as to whether
the person ought so to apply; and, in the latter case, the court may treat
such application as an application on behalf of such person for the purpose of
avoiding the effect of limitation.
(8) Unless the court otherwise directs, no
application shall be heard by the court at the instance of a party claiming
the benefit of this part unless the proceedings for such application be
instituted within 9 months after the death of the deceased; but the court may
at its discretion hear and determine an application under this part although a
grant has not been made.
(9) A person who, if a declaration of paternity were
made upon the person’s application under the provisions of the
Status of Children Act 1978 , would be entitled to make an application under
this part may make an application under this part but such application shall
not be proceeded with until the person has obtained a declaration of paternity
under that Act; and the court may give such directions and act as it thinks
fit to facilitate the making and determination of all necessary applications
on behalf of that person under that Act and this part.
(10) Upon any order
being made, the portion of the estate comprised therein or affected thereby
shall be held subject to the provisions of the order.
(11) No mortgage,
charge or assignment of any kind whatsoever of or over such provision, made
before the order is made, shall be of any force, validity or effect, and no
such mortgage, charge or assignment made after the order is made shall be of
any force, validity or effect unless made with the permission of the court.
(12) Where any sum of money or other property is received by any person as a
donatio mortis causa made by the deceased person that sum of money or that
other property shall be treated for the purposes of this part as part of the
estate of the deceased; but this subsection shall not render any person liable
for having paid that sum or transferred that other property in order to give
effect to that donatio mortis causa.
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