CONTESTING A WILL IN QUEENSLAND
1. What does it mean to “challenge” or “contest” a Will:
When someone speaks about “challenging” or “contesting” a Will, they generally mean one of two things:
a. they question the legitimacy of the Will; or
b. they feel they have not inherited enough under the Will and want more from the Estate.
Accordingly, the process to challenge a Will depends on which of the above issues apply to a person’s circumstances.
2. In order to contest a Will you must be an eligible person:
In order to contest a Will, a person must be an eligible person with respect to the deceased’s estate. An eligible person is someone whom falls within one of the following categories:
a. The deceased’s spouse;
b. The deceased’s child; and/or
c. The deceased’s dependant.
Whilst the definitions of spouse and child are more or less as you would expect under the Succession Act, in order for any person to be a “dependant” they must have been “wholly or substantially maintained” by the deceased person at the date of the deceased person’s death.
As such, if you relied financially upon the deceased at the date of the deceased’s persons death, you may be an eligible person to contest a Will.
3. How long do I have to contest a Will?
In Queensland there are time limits that apply for contesting a Will.
If a person wants to contest a Will in Queensland, first they must give notice to the executor that they intend to contest the will of the deceased. This notice should be in writing and must be given within six months of the date of death. If the executor does not receive notice of a potential claim, after six months has passed, they can distribute the estate and there may be no estate assets left to claim against.
The second time limit which applies to family provision applications in Queensland requires a claimant to file their application in the court within nine months of the date of the deceased’s death. This is what is meant by the “limitation date”.
In certain cases, “out of time” applications can be made, however this is at the discretion of the Court. In deciding whether to allow an “out of time” application, the court will consider a range of factors, including:
a. The length of the delay;
b. The reason for the claimant’s delay;
c. Whether the estate has been distributed; and
d. Whether the claimant has engaged in any unconscionable conduct.
4. If you question the legitimacy of the Will:
An eligible person may contest a Will as not the last Will of the deceased because:
a. It was revoked by the deceased;
b. The deceased lacked the mental capacity to make a Will;
c. Parts of the Will were amendments made after the Will was executed by the deceased.
In the above circumstances, the validity of the Will must be determined. The Court decides the issue by granting or refusing to grant probate of the Will, or by revoking an existing grant of probate. Once a grant of probate is obtained, an executor may proceed to distribute the estate in accordance with the terms of the Will.
5. If you have been inadequately provided for under the Will:
A person who wishes to challenge a Will upon the basis that they have not received enough of an inheritance must demonstrate that the provision provided for under the Will was inadequate for that persons proper “maintenance and support”.
This is demonstrated by producing evidence as to the persons income, assets, liabilities and expenditure, as well as any medical, educational and lifestyle needs.
However, a Court may also give consideration to any disentitling conduct which may have justified the testator’s decision to leave nothing, or not much, to a beneficiary. Such disentitling conduct may include; serious criminal behaviour, estrangement due to the claimant’s own conduct, and drug or alcohol abuse.
6. What is a Family Provision Application?
Generally, testators may leave their possessions and money to any people or causes they choose. However, if the deceased’s close family or dependants will suffer hardship as a result of the deceased’s decision to give money or property to others, a family member may bring a Court action for provision from the estate of the deceased.
The Succession Act 1981 (Qld) (Succession Act) allows Courts to award family members or dependants a portion of the deceased’s estate, even though the deceased made no provision or an inadequate provision for them in the Will (ss 40–44 Succession Act). Family provision applications may be brought even if the deceased died intestate (intestate meaning without a Will at the time of their death).
7. What factors do the Court consider as part of a Family Provision Application:
The Succession Act does not provide a list of factors for the Court to consider when a person contests a Will, however case law suggests that the following factors are usually taken into account:
a. The applicant’s financial position;
b. Whether any other person is liable to support the applicant;
c. Whether the applicant is bound to support any other persons;
d. The applicant’s health;
e. The deceased’s influence on the applicant’s lifestyle;
f. The age of the applicant;
g. The size and nature of the deceased’s estate;
h. The strength of any competing claims to the deceased’s estate;
i. The relationship between the deceased and other persons who might have a claim to a share of the deceased’s estate;
j. The relationship between the deceased and the applicant;
k. Any contribution made by the applicant or a beneficiary to the build-up of the deceased’s estate;
l. Any conduct on the part of the applicant which might disentitle them to an order for provision; and
m. Any other matter which the Court considers relevant.
8. Who pays the costs of contesting a Will?
In Queensland, costs are in the discretion of the Court, but usually they follow the event. This means that the successful party in legal proceedings will usually have some of their legal costs paid by the other party.
Typically, this means that:
a. If the Judge makes an order for provision for the applicant, the estate will usually pay the applicant’s standard costs;
b. If the applicant is unsuccessful and the Judge makes no order for provision for the applicant, the Judge may order the applicant to pay the executor’s costs of defending the proceedings.
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