In Australia, each state and territory has its own legislation in relation to contesting a will and making a claim for family provision from the estate. In Queensland, family provision claims are dealt with in Part IV of the Succession Act 1981.
The Succession Act clearly lays out who is able to contest a will within the state and the grounds on which they may be able to do so. Read on to get a better understanding of what this means for you.
Valid reasons to contest a will in Queensland
There are a number of reasons why you might want to contest a will, but the law limits the ones that you can actually bring a legal challenge for.
However, you may not realize that when it comes to an estate dispute there is a difference between contesting wills and challenging them – and it’s a critical one. Contesting wills specifically refers to family provision claims, while challenging it is more related to allegations that the entire will should be disregarded.
Put another way, you might contest a will if you believe it to have been created in a valid, legal manner, but also in a way that may have been unfair to you.
What are the challenges that can be made to a will?
As noted, there are several things the law views as valid reasons to contest a will. These are limited to the following:
- Lack of provisions made for an eligible person (and we’ll get into who that is later)
- Lack of proper execution of the will, or evidence of tampering with it
- Exertion of undue influence on the deceased
- Presence of a more recent will
- Mental incapacity on the part of the deceased to create, update or alter a will.
However, there are different reasons to contest a will, including the fact that you believe you have not been adequately cared for in the will document. That might include feeling that you did not receive a sufficient share of the estate’s assets, or that you were left out entirely.
What money or property is regarded as being part of an estate in a will challenge case?
The answer to this question is simple: It encompasses anything owned by the deceased person. What that means, however, is that if there is anything they owned jointly, that would likely not be considered part of that person’s estate.
You will certainly want to make sure that there are adequate provisions for your needs if you fall into the categories of beneficiaries who can contest a will.
Of course, you cannot contest a will if the letter of the law does not allow you to, so it’s important to understand your eligibility because you attempt to secure a family provision via this route.
However, even if you believe you are eligible to contest a will and submit a family provision application, that does not mean your effort will be successful, and that may be the case for any number of reasons.
When it comes to these issues, it’s important to remember that there is not really a “Queensland v. national law” situation. Each state and territory has its own succession laws and what applies in one jurisdiction may not apply in another. An estate litigation lawyer may be able to help you understand how these apply to your case.
Who is entitled to make a claim to challenge or contest a will in QLD?
Queensland law states that to be eligible to contest a will in the state, you will have to be the spouse, child or dependent of the deceased person.
That may sound relatively straightforward, but there are a lot of ins and outs under this consideration. A spouse, for instance, can be a husband or wife, but also a de facto partner, registered partner, or even a former spouse/partner (in certain situations).
Likewise, a child can be a biological child, legally adopted child, stepchild, or even unborn child.
Meanwhile, defining a dependent is more complicated: It’s someone who was financially dependent upon the deceased person, including their parents, children under the age of 18, or anyone else who was being financially cared for by the deceased. As long as you can prove dependency to the court’s satisfaction, you may be able to make a claim on the deceased person’s estate.
Can a niece or nephew contest a will in Queensland?
How do you know if you are eligible to contest a will?
It’s not always easy to determine whether you are an eligible person who can contest a provision (or the entirety) of a deceased’s will.
You will have to be able to prove that you were dependent upon the deceased person and that their will did not make an adequate provision based on their “moral obligation” to you.
This obligation may include financial responsibility for your care or maintenance of your life, education or advancement. If you can prove that there is unmet need on this front, you may be able to make a larger claim on the deceased’s estate.
The claims process
What is the process of contesting a will in Queensland?
While you can certainly choose to represent yourself in contesting a will, it’s preferable (and easier) to rely on a highly experienced legal professional such as Gerard Malouf & Partners.
Once you have found the right representation, you will need to collect evidence to prove your claims, and that evidence will have to be sufficient and relevant to convince a judge that your claim for additional provision is valid.
In most cases, however, you will be able to negotiate a settlement before getting to the court system, and mediation is the most common outcome on this front. During mediation, there will be a full accounting of the estate’s assets and their value.
Do you need to go to court when challenging a will?
What factors does the court take into consideration when you challenge a will?
Once a person can show they fall into one of the categories of people who are able to contest a will in the first place, they must next demonstrate to the Court that they have a “need” and “moral claim” on the deceased’s estate. However, there is no hard and fast rule for what constitutes either of those things, and the court will consider them on a case-by-case basis.
In general, though, the court will consider factors such as the value of the deceased’s estate, the relationship between the applicant and the deceased person, the financial circumstances of the applicant, any disentitling conduct of the applicant, the health of the applicant and much more.
How long do you have to contest a will in Queensland?
A person who intends to contest a will and submit a Family Provision application on an Estate in Queensland should provide written notice of the intention to make the claim to the Executor of the Estate within six months of the date of the deceased’s death. Official legal proceedings, by way of Originating Process, should be filed and served no later than the date 9 months after the date of death.
It is possible in some circumstances to make a claim after the above periods, but this is generally only in exceptional circumstances and there are no guarantees your claim will be accepted by the court after this time, so it is important to file proceedings within the nine-month period.
What duties and obligations is an executor under when defending a contested will claim?
When wills are contested, their executors must first ensure they do not distribute any assets from the estate until the family provision claim is decided.
Beyond that, the executor must provide the court with all relevant documents, including the aforementioned full list of all assets and their value. They will also have to state if there is a conflict of interest between themselves and any beneficiaries of the wills in question.
How GMP Contesting Wills can help
While most people have no experience in contesting wills, lawyers who specialise in this area of the law certainly do. You should therefore connect with a highly professional estate lawyer who can examine your case, give you a realistic picture of the options available to you, and help you mount your defence so that you improve your odds of getting an improved family provision.
If you have been left out of a will or you believe that you have not received an appropriate benefit from a will, contact an attorney at our office today to speak to our experienced staff about meeting with a contesting wills lawyer. Your first consultation is free and we contest on a “no win, no fee” basis.
Our Case Summaries
If no resolution is met before legal action is taken, an estate dispute will move on to mediation. Here’s how that process works.