Contesting a Will in Queensland - Who Can Make A Claim?

Published 23 Jul 2014

Author: Richele Nelsen

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.

Who can make a claim?

Not just anyone can make a claim for Family Provision on a deceased Estate. Only certain persons are classed as eligible persons to make a claim for provision. In order to make a claim for Family Provision in Queensland an applicant must fall into one of the following categories:

  • A spouse of the deceased. This includes husbands, wives and de facto partners.
  • A child of the deceased. That includes any child, step-child or adopted child of that person.
  • A dependent of the deceased. This includes any person who was being wholly or substantially maintained or supported by the deceased person at the time of the person’s death. The dependent must also be a parent of the deceased person, or the parent of a surviving child under the age of 18 years of the deceased person, or a person under the age of 18 years.

What else does the Court consider?

Once a person can show they fall into one of the categories above, they must next demonstrate to the Court that they have a “need” and “moral claim” on the Estate. What these terms generally mean often depend on the individual circumstances of each case. The Court will consider things such as the value of the 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.

Time limits to contesting a will

A person who intends to contest a will and make a claim for Family Provision on an Estate in Queensland should provide written notice of the intention to make an application to the Executor of the Estate within 6 months of the date of 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 after this time so it is important to file proceedings within the 9 month period.

If you have been left out of a Will or you believe that you have not received an appropriate benefit from a Will, contact our office today to speak to our experienced staff about contesting a will. Your first consultation is free and we contest on a ‘no win no fee’ basis.

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