Contesting a Will
There are various ways that a Will or a deceased estate can be contested, a Family Provision Application is the most common way for a will or deceased estate to be contested in Queensland.
A Will can be challenged if:
- The deceased did not have the mental capacity to make the Will at the time that it was executed;
- The Will was made under the influence of others; or
- If the deceased had a moral duty to provide for another and did not do so.
Other grounds upon which wills are sometimes contested include:
- Removal of personal representatives or executors;
- Missing beneficiaries;
- Disputes over the administration of the estate; and
- Delay
The Supreme Court of Queensland has the authority to intervene where a deserving beneficiary has been fully or partially excluded from a Will however, not everyone can contest a Will. The only people entitled to bring Family Provision Applications are:
- spouses (which includes de facto spouses);
- children (which includes step-children); or
- dependents.
Has the Will been made under influence or duress?
If the will was made under influence or pressure, the validity of the Will may need to be tested in court. That process is known as a “Solemn Form Proceeding”. In a solemn form proceeding, the court will inform itself of all of the relevant factors and use that information to determine whether the Will is valid or invalid. If the court rules that the Will is invalid, the court may make an order setting it aside.
A Will can only be contested in Queensland if the deceased person:
- Lived in Queensland; and/or
- Owned Real Estate in Queensland
Time Limits
In order to contest a Will, you must give notice to the executor of the estate that you intend to contest the will of the deceased. The notice must be given in writing within six months of the date of death. If no notice of claim has been given within 6 months of the date of death, the executor will often distribute the estate. Once the assets have been distributed, the estate administration process will be finalised and there will be no estate assets to claim provision from.
Notice given outside of this date will still be valid, provided that the time limit for filing the application in court has not expired. TheSuccession Act 1981 (Qld) requires that an application for further provision from an estate must be filed within 9 months of the date of death. The court does have discretion to extend that timeframe if it sees fit.
What the Court will Consider
There are various other factors that the Court will consider when someone wishes to challenge a Will. These factors include:
- Whether adequate provision has already been made for the applicant from of the Estate;
- The size and nature of the Estate;
- How the distribution was effected under the Will;
- The applicant’s financial position in relation to the size of the estate and that of other beneficiaries;
- The relationship between the applicant and the deceased including estrangement;
- The needs and claims of the applicant;
- The conduct of the applicant including disentitling conduct.
How to get Started:
- A family provision application involves an application being made to the Supreme Court.
- The applications are complicated, you should call the team at Gold Coast Estate Law on (07) 5532 9744 for advice on bringing an application;
- The executors and other beneficiaries may also be represented. The applicant will be required to satisfy the court that they are deserving of further provision from the estate.
Professional advice from a qualified lawyer makes all the difference in estate litigation. Before you begin, telephone Gold Coast Estate Law on (07) 5532 9744 for a no obligation discussion.