Updated: Dec 15, 2020
Sometimes, we disagree with the legitimacy or terms of a Will. Whether we have been omitted completely, believe we are entitled to more or others to less, or refute the validity - this can lead to contesting or challenging the Will. So, who exactly can contest a Will in Queensland, who is responsible for the costs and under what grounds can a claim be made?
A question of eligibility
In Queensland, you must meet eligibility requirements as outlined in the Succession Act 1981 (Qld) in order to contest or challenge a Will. You must identify as one of the following:
The deceased’s spouse.
The deceased’s child.
The deceased’s dependent.
To be considered a dependent, you must be able to prove that you were financially reliant on the deceased at the time of their death.
Time is of the essence
Time limits apply to contesting a Will in Queensland.
Notice must be provided in writing to the executor within six months of the deceased’s passing.
Family provision applicants* must file to the court within nine months of the deceased’s passing.
In the event the executor does not receive a notice of potential claim within the required six-month limitation, they are free to distribute the estate.
There are circumstances where applications can be made outside of the above timeframes. This remains at the discretion of the courts and a range of factors are considered including, whether the estate has been distributed, the length of the delay, reasoning of the delay and any unconscionable conduct.
*In the event a spouse, child or dependent/s will suffer hardship as a result of the terms of the Will, an application may be made to the court seeking provision from the estate. This is referred to a family provision application. A range of factors are taken into account by the court in these instances.
Understanding the costs
Typically costs associated with contesting or challenging a Will in Queensland are paid after the fact. At the discretion of the courts, often this is one of the following:
In the event the applicant is awarded provision, the estate will usually pay for the standard costs.
Where the applicant is unsuccessful, they may be ordered to pay the defence proceedings as incurred by the executor.
In instances where the validity of the Will is questioned in Queensland, an eligible person must prove one of the following:
The deceased did not have the capacity to make a Will or was subject to undue influence.
Amendments were made to the Will by the deceased.
The Will was revoked by the deceased.
The court determines the validity of a Will by granting or refusing to grant probate of the Will, or revoking a grant of probate*. Following the provision of a grant of probate, execution of the estate can commence.
*A grant of probate is a Supreme Court document that recognises someone's authority to deal with the estate of a person who has passed away. Probate is often needed before the executor of a deceased estate can take control of the estate's assets (administer the estate).
Cases of inadequate inheritance
If you are contesting or challenging a Will in Queensland on the basis you have received an inadequate inheritance, you must demonstrate that the provision provided in the Will falls short in terms of *maintenance and support*. This means that you need to provide supporting evidence which may include income, expenditure, assets, liabilities and any other lifestyle, medical and educational needs.
You may also be able to contest or challenge a Will in Queensland if you believe a promise was made to you regarding parts of the estate and this did not occur or if you believe there is an error in the Will. Like the cases mentioned above, supporting evidence must be provided to prove your claim.
If you are considering contesting or challenging a Will in Queensland, or if you are the executor, family member or dependent involved in a case, seeking legal advice specific to your situation can help. Contact our team for a confidential discussion.