Can A Child Contest A Will If Excluded In Queensland?

Have you have been unfairly left out of a will or been left with inadequate provision? A child, stepchild, or adopted child can contest a will by making a family provision claim under the Succession Act 1981 (Qld) “Succession Act”. However, there are a number of factors to consider when making a family provision claim, depending on whether you have been explicitly left out of the will or as an oversight.

If a child has been explicitly left out of the will, the onus is on the child making a claim to prove that they are entitled to the estate or at least part of it. For example, if a child and parent had an estranged relationship, and the child can’t prove that they made a notable effort and a genuine attempt to reconcile with their parent before their death, the Court can decide they have no entitlement under the estate.

What Constitutes an Eligible Applicant? 

To contest a will, you must be an eligible person. Section 41(1) of the Succession Act states:

If any person (the “deceased person”) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

So, to make a family provision claim, the applicant must be:

  1. A spouse of the deceased;
  2. A child of the deceased; or
  3. A dependant of the deceased.

A Child of the Deceased
A child of the deceased can include :

  1. A Child (including an unborn child);
  2. A stepchild; or
  3. An adopted child.

There are several issues the Court will look at when considering the eligibility of a child over 18 years of age to further provision from the deceased estate, including (inter alia):

  1. The moral obligation or community expectation between parent and child;
  2. The relationship between parent and child at adulthood;
  3. The lack of reserves to meet ill health or the need for financial security;
  4. Whether the child is still a dependent or not;
  5. A fund to protect against the change of circumstances or fortune; and/or
  6. The inability to earn an income.

Contesting a Will has a Time Limit 

Once it has been established that you are an eligible applicant and believe that you have not been sufficiently provided for in the will, a family provision application must be made within a strict time limit.

When must you notify the executor that you are thinking about contesting the will?

 

Section 44(3)(a) of the Succession Act states:

(3) No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative …

(a) not earlier than 6 months after the deceased’s death and without notice of any application or intended application under section 41 (1) or 42 in relation to the estate

What this means is that if you are thinking about contesting a will, then you must provide a written notice of the application or intended application to the executor of the will within six (6) months of the death of the deceased.

Queensland Probate recommends that you provide notice to the executor as soon as possible before the six (6) month time limit has elapsed.

**Note: If the estate’s executor does not receive notice of the family provision claim, after six (6) months have passed, they are able to distribute the estate.

When should you file the family provision application?

 

After notice has been given, Section 44(3)(b) of the Succession Act states:

(3) No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative …

(b) if notice under section 41(1) or 42 has been received—not earlier than 9 months after the deceased’s death, unless the personal representative receives written notice that the application has been commenced in the court or is served with a copy of the application.

What this means is that after you have given your notice of intention to make a family provision application within 6 months after the deceased’s death, you must then file the family provision application within nine (9) months of the death of the deceased.

Contesting a Will Out of Time Applications

In some instances, an application can be made outside of these time limits.

However, this is solely at the Court’s discretion, taking into consideration a number of factors, including:

  • The reason for the delay in bringing the application;
  • The length of the delay in bringing the application; and
  • Whether the distribution of the estate has occurred.

However, these are rare cases and are only allowed in limited circumstances.

In summary, a child who has not been adequately provided for in a will or has been excluded from a will in Queensland can contest if they believe that they are within their right to do so. 

Speak to one of our solicitors today for more information about contesting a will. 

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