Change location v

Contesting a Will in Queensland

If you feel like you have been unfairly left out of a will, you are not alone. This happens more than you might think and people contest wills frequently. Some often feel as though they have been unfairly treated or inadequately provided for. If this is a familiar feeling, experienced law professionals can help you get what you deserve. Keep in mind that you will need to dispute the will and have a solid legal stance because Queensland has more complicated laws regarding the topic than other states. 

Here is everything you need to know about disputing a will in Queensland. 

What contesting a will means

Contesting a will means that you are calling for a petition to have the court challenge the validity of a will. Your claim is brought under scrutiny once it is filed as part of a court proceeding. This happens when the family or a descendant feels like the will doesn’t accurately reflect the deceased person’s wishes or there was not an adequate provision. The formal objection could result in the descendant or family member receiving something that was otherwise not listed in the initial will. 

In Australia, it is encouraged for people to prepare a last will and testament. In general, the will should be respected but there are certain situations where someone is not adequately provided for. When it comes to navigating inheritance disputes, the law is complex and can be confusing, especially if you are not used to reading or hearing legal documents and jargon. This is why it is so important to partner with a team of family law professionals who can guide you through the entire process. 

Family inheritance law changes from state to state across the country, and Queensland has its own set of rules and regulations that someone who is contesting a will must follow. Queensland law allows families, descendants and dependents to challenge the will if they feel like something has been overlooked in the will. If you are unsure if you qualify to contest a will, a family dispute lawyer can help you determine your particular situation. 

Who can contest a will in Queensland

The first step to contesting a will is to figure out if you are eligible to do so. All of the requirements are noted under section 41 of the Succession Act.  In Queensland, there are certain qualifications that must be met. The person is eligible to contest the will if they are:

  • The spouse of the person who passed: The deceased person’s husband or wife, de facto partner, registered partner, or even former partner.  
  • The child of the deceased: The biological offspring of the deceased, an unborn child, someone who has been lawfully adopted or the stepchild of the person who has passed.  
  • The dependent of the deceased: Someone who completely relied on the deceased before they passed, known as “total or substantially maintained.” In Queensland, if you financially relied on the deceased at the date that they passed, you would be known as a dependent. 

A legal professional can help you determine whether or not you are entitled to contest the will. Once you have determined that you are an eligible person, it is time to get started with a family provision claim.

How to be successful when contesting a will

Challenging a will can come with its own potential issues, but if you work with an experienced legal team, they can help you navigate these challenges. Your team will have to prove that you were inadequately provided for by the initial will and that you rightfully deserve more than what was stated. Here are examples of what must be proven to the court:

  1. Family members and dependants should have been provided for in the will. 
  2. The will was initially made under the formal requirements of Queensland. 
  3. That the testator would have wanted something other than what the will suggests. 
  4. The last will and testament were created under the undue influence of a third party. 
  5. The testator was not in their right mind when the will was created. 
  6. A provision did not exactly achieve the intended intention. 

There are several ways that you can prove that the will is not adequately providing for a family member or dependent. This is important because the court will take into account every aspect to make a final ruling. Some of the factors that may influence compensation include, but are not limited to, your health, financial status, age, as well as size of  the deceased’s estate.

Process of contesting a will in Queensland

When looking to contest a will in Queensland, the first thing that you will need to do is to notify an estate lawyer and the executor. Both should know about your intentions to contest the will and why you want to do so. When this happens, the executor must stop distributing the assets. 

A mediator will be next to look over the case and evaluate the validity of the will. If an agreement cannot be reached at mediation, the case will go to trial where both parties will need to present their evidence and argument. In the end, a judge will decide how the estate will be distributed and who is responsible for the court fees. Because there will be negotiations during the process, a mediator will be necessary. In the case that a mediator is unable to reach an agreement between the parties, the case will go to court. During this time, it will be decided who will pay the legal fees.  

How long does it take to contest a will?

The entire process of contesting a will has varying timelines. There are some notable time periods that should be considered before proceeding. It is best to contact a will dispute lawyer as soon as possible who has experience in estate planning. Unfortunately, it can be difficult to meet all the timelines, especially in Queensland. This is why it can be helpful to have a professional lawyer on your side. 

It is extremely important to notify the executor that you want to contest the will within six months of the date of the testator’s death. Keep in mind that there are some cases that you could notify after the six-month period, and if the estate has not yet been distributed, the executor must pause the process and address the claim. A family provision claim must be filed within nine months of the deceased’s death. 

If you are confused about whether you can still contest a will, reach out to a professional for confirmation. Again, it is important to start the process as soon as possible. If the executor has waited six months after the deceased person passes, they can begin distributing assets. In this case, you are most likely too late to contest the will. It may still be worth speaking to a lawyer if you consider your situation to be compelling enough. 

Why Gerard Malouf & Partners?

You may feel somewhat overwhelmed when considering the possibility of contesting a will in Queensland courts, especially if you are grieving a recently passed loved one. At Gerard Malouf & Partners, we take your case on a no-win, no-fee basis, meaning that if you unexpectedly lose your claim, we waive our legal cost. Our lawyers have the experience and knowledge to take on your case and offer valuable legal advice. Reach out today to get started. 


Our Case Summaries

© 2022 
Contesting Wills
 — Gerard Malouf & Partners

Website Design by MediaSmiths

Your location is currently: