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Estate
Litigation

At the foundation of succession law is the freedom of testation which is the power each person enjoys to make a will and testament specifying how and to whom their assets are to be distributed. This freedom is not absolute and cannot prevent eligible persons from bringing an action to dispute the contents of a will. In certain circumstances, particular parties may be able to challenge a deceased’s Will.

Our team here at Stone Group Lawyers have the expertise and experience in Estate Planning to personalise an enduring plan for you and your estate to so that you can continue to provide for your nearest and dearest.

To book in a free 30 minute consultation with one of our Wills and Estate Lawyers, use the booking form below or call the office on (07) 5635 0180.

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Estate Litigation

When someone speaks about “challenging” or “contesting” a Will, they generally mean one of two things:

They question the legitimacy of the Will; or
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.

Contesting the grant of probate

A person may contend that a will is not the testator’s most recent and last will with evidence that:

The testator revoked the will;
The testator was not competent to give instructions or make a will;
Alterations or additions were made to the will following the testator’s signature.

The Court will then determine the will’s validity which will result in granting, refusing or revoking a grant of probate.

Contesting on point of construction

Where the terms of a will are not written in a way that is sufficiently definite or precise, the Executor or a person interested in the estate may apply to the court for a decision on the meaning of part of the will. The Court will order that part of the will be read with a particular meaning and absolve the parties of any doubt to the will’s construction. Where a person is wishing to make an application on this point, the application must be made within six (6) months of the testator’s death.

Contesting on point of construction

Family provisions applications

As a limit to the freedom of testation, a member of the deceased’s close family or a dependent of the deceased may seek a court to make a provision in the distribution of the estate for their support and maintenance subject to certain conditions listed in the Succession Act 1981. Particularly, this is actionable where these persons will suffer hardship as a result of the deceased’s decision to distribute their assets to others.

In Queensland, if you believe that you have a potential family provision application to a will, you must provide the deceased’s personal representative with written notice of your intended application within six (6) months of the deceased’s death. A legal action for the same must then be commenced within nine months of the deceased’s death. Court applications brought after this period are at the discretion of the Court.

Eligible persons to apply for provision from an estate include:

The deceased’s spouse, subject to certain conditions and time limits;
Any child of the deceased including step-children or adopted children;
Any dependent of the deceased with the condition that they were being wholly or substantially maintained or supported by the deceased at the time of the death subject to certain conditions.

After filing an application and completing the necessary pre-litigation steps, the Court will consider whether adequate provision has been made for the applicant’s proper maintenance and support as they may have reasonably expected from the testator. The Court will account for the following:

The estate’s net value following deductions for reasonable expenses;
The applicant’s financial position, age, sex and health;
The closeness of the relationship enjoyed by the applicant and the deceased;
If, at all, the applicant contributed to the accumulation of the deceased’s estate;
The applicant’s character and conduct; and
Any factor the Court finds reasonably necessary to consider.

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:

If the Judge makes an order for provision for the applicant, the estate will usually pay the applicant’s standard costs;
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.

If you have been unfairly left out of a will or are considering contesting a will, Stone Group Lawyers have a dedicated and professional team of lawyers who can assist you and provide you with advice and guidance you need.