Disputing a will in Brisbane
If you feel like you’ve been unfairly left out of a will or inadequately provided for, our experienced law professionals can help dispute the will in question and get you the disbursements you deserve.
Grounds for contesting a will in Brisbane
Contesting and challenging a will follow two different processes.
When you contest a will, you are a beneficiary or eligible person who has been either left out of the estate completely or has been inadequately provided for. When you challenge a will, however, the claim is stating that the will is invalid in some capacity.
Although anyone can make a will benefiting whoever they want to, the deceased may have a duty to adequately provide for anyone who would expect to benefit from their estate.
You could challenge a will for several different reasons. This process will usually happen after the document has been legally approved by the courts, known as a Grant of Probate. Until the will has reached probate, the document has not become a legal testament to a person’s final wishes. Once probate is granted, the appointed executor will begin collecting all of the funds and property of the estate and distribute them amongst the people named in the will.
The most common reasons for challenging a will includes:
- Testamentary capacity (mental wellness) on behalf of the will-maker.
- Undue influence.
- Fraud or forgery.
- Suspicious circumstances.
- Lack of knowledge and approval from the will-maker.
- Fails to meet formal requirements for execution.
Whether you’re contesting or challenging a will, the court will only consider the claim if you are an eligible person, or if you have some extenuating circumstance as to why you may be eligible for benefits.
The process of challenging or contesting a will can be very complex and confusing. Disputing a will and facing family members in court after a loved one has passed away can also be an emotional and sensitive process. Gerard Malouf & Partners will handle your case with care and diligence.
We offer a no-obligation consultation of your case. If we find you have a valid claim, we’ll run on a no-win, no-fee basis.
Who is eligible to file a will dispute claim
In Brisbane, Queensland, the following categories of people can contest or challenge a will:
- Children or stepchildren, youth and adults.
- Dependents of the testator or a person under the age of 18 who was substantially dependent on the deceased at the time of their passing.
- Spouse, domestic partner or de-facto spouse.
- Anyone mentioned in the will.
Someone outside this list may be eligible if they were mentioned in a previous will before the current document was finalised as well.
Generally, even though you may be eligible to contest doesn’t mean you will win benefits. You and your litigation lawyer at Gerard Malouf & Partners will have to establish a need for why you deserve adequate provision. Anyone can apply to dispute the will if they have an “interest” in the wills estate with evidence on why they should legally benefit from it.
Filing an estate dispute lawsuit in Brisbane
You must give notice of the intended dispute claim on the will to the executors within six months of the date of the testator’s passing, and proceedings must begin within nine months of their death. Filing outside of these limits is still possible, but does make the process much longer and more difficult because a lot of the estate may be difficult to recollect. In this case, however, you may be compensated in monetary value instead.
When challenging a will in Queensland, the first step is filing a caveat to the Registry of the Supreme Court. Once the caveat is filed, the court will either not grant probate or cease distribution of the estate.
If the caveat has been successfully filed, and the family provision application for probate is made, then the court will give notice to the person filing the claim (the caveator or you) and the person who applied for probate. At this point, the caveator will need to file a notice in support of their caveat within eight days of when the Supreme Court was given notice.
If no notice is given, the court will consider the application for probate and disregard the caveat. If the notice is given in time, however, then all processes will stop completely until the caveat is satisfied.
The success of your case will depend on several factors:
- Your status within the family.
- Your financial position.
- The size and nature of the asset in question.
- Your health and the ability your family has to earn income.
- The number and quality of any competing claims.
- Any contributions to building up the deceased’s estate.
- Any disentitling conduct on your behalf.
The process of coming to a dispute agreement begins between the two parties, and will then escalate to a mediator who will bring more formality to the proceedings. Finally, if the family provision claim can not come to a settlement, the case will be brought to court where each party will need to submit an affidavit.
Gerard Maloud & Partners
Your Queensland estates lawyer
With Gerard Malouf & Partners at your side — from disputing the initial wills to finding a dispute resolution — you’ll have time to properly grieve the life of your loved one or family member.
Gerard Malouf & Partners deceased estate lawyers are qualified and ready to take on your claim. Whether disputing a previously valid will or proving why you deserve to be a beneficiary of the will, we will do our best to advocate for a favourable outcome.
For more information about your legal rights to contest an unfair will and how we can help you maximise your claim, give our friendly staff a call now on (02) 9161 5516 or complete our contact form.