When it comes to contesting a will in Queensland, there are many considerations ranging from eligibility to contest and filing a family provision application to what matters to the Court, time limits and, ultimately, who pays the fees.
If you believe that you have been inadequately provided for in a loved one’s will or have grounds to contest a will, this article will provide you with all the necessary answers and access to legal knowledge to assist you.
Why Contest A Will?
The reasons to contest a will are quite often mistakenly conceived as motives of extreme avarice and opportunism (thanks to Hollywood), but in many cases, eligible parties have legitimate grounds to “challenge” or “contest” a will because they:
- Wish to challenge the validity/legitimacy of the document (e.g. because the deceased did not have sufficient capacity or was unduly influenced or there was fraud at the time) (Validity Issue); or
- Feel they have been left without adequate provisions and that the court should get involved to help (Family Provision Claim).
Contesting a Will in Queensland
Who Can Contest A Will?
Any person who is prejudiced by a Validity Issue can contest the will.
A person that wants to make a Family Provision Claim because inadequate provision has been left for them must be someone that falls within one of the categories below:
- The deceased’s spouse;
- The deceased’s child;
- The deceased’s dependant.
Each of the above types of relationships has been defined under the Succession Act, but it is worth expanding on each individually to help one understand which type of people might fall under each category:
Who is Recognized As A ‘Spouse’?
- The deceased’s husband or wife;
- The deceased’s de facto partner (i.e. a de facto partner of the deceased for a continuous period of at least 2 years ending on the deceased’s death);
- The deceased’s registered civil partner (pursuant to the Civil Relationship Act 2011); and
- The deceased’s dependant previous husband, wife or registered civil partner who was on the deceased’s death receiving or entitled to receive maintenance from the deceased, subject to certain conditions.
Who is Recognized As A ‘Child’?
- The deceased’s biological child;
- The deceased’s lawfully adopted child; and
- The deceased’s stepchild.
Who is Recognized As A ‘Dependant’?
A person being wholly or substantially maintained or supported by the deceased who, at the time of the deceased’s death, was;
- The deceased’s parent;
- A parent of a surviving child of the deceased (under the age of 18); and
- A person under the age of 18.
How To Contest A Will?
There are two ways to formally challenge or contest a will:
Challenging The Validity of A Will
You may decide to challenge the validity or legitimacy of a will if you believe:
- The will is fraudulent/fake/forged;
- The deceased was impressed upon to make the will;
- The deceased did not have the sound mental capacity to make the will.
In order to challenge a will in these circumstances, a person must first file a caveat in the Supreme Court of Queensland.
Contesting the Will because of a Family Provision Claim?
Generally speaking, one is able to give their assets to any people/cause of their own choice.
However, if the deceased’s family and/or dependants will endure financial hardships as a result of the deceased’s decision, a family member (i.e. spouse, child or dependant as defined above) is able to bring a Court action for provision from the estate of the deceased.
It is important to note that in order for an eligible party to make a claim, their deceased relative would have to have property in Queensland.
The Court is allowed to award successful applicants a portion of the deceased’s estate even if they were not mentioned in the will and even under circumstances of intestate — when the deceased did not draft a will prior to their passing.
What Does The Court Consider When Deciding A Claim of Family Provision?
Due to the fact that the Succession Act does not provide an exact list of factors that the Court uses when deciding a claim, we must look at case law for suggestions on what gets taken into account:
- The applicant’s financial position;
- Whether any other person is liable to support the applicant;
- Whether the applicant is bound to support any other persons;
- The applicant’s health;
- The deceased’s influence on the applicant’s lifestyle;
- The age of the applicant;
- The size and nature of the deceased’s estate;
- The strength of any competing claims to the deceased’s estate;
- The relationship between the deceased and other persons who might have a claim to a share of the deceased’s estate;
- The relationship between the deceased and the applicant;
- Any contribution made by the applicant or a beneficiary to the build-up of the deceased’s estate;
- Any conduct on the part of the applicant which might disentitle them to an order for provision; and
- Any other matter which the Court considers relevant.
How Long Do You Have To Contest A Will?
There is a certain date range or time limit to when it comes to contesting a will in Queensland — and the claim must be made as soon as possible.
A written notice, with details required by law, must be given to the executor within 6 months of the date of death. If you fail to do this within the required time frame, the executor can distribute the estate and you may have nothing left to claim against. If you give notice within 6 months, you then need to file an application in the Supreme Court, and notify the executor of the same, within 9 months of the date of death.
If, however, you do not give the written notice within 6 months, claimants are still able to file a claim within 9 months of the date of death provided the estate has not been distributed at the time of the notice is filed and served on the executor.
Finally, in certain situations claimants are allowed to file “out of time” applications, but whether or not these will be allowed is fully up to the discretion of the Court as they consider certain mitigating factors such as:
- The length of the delay;
- The reason for the claimant’s delay;
- Whether the estate has been distributed.
How Much Does it Cost To Contest A Will
(And Who Pays The Fees)?
There is no real average cost to contest a will as it will vary depending on whether it is a quick cheap settlement or if you have to finalize the claim through the process of mediation in Court or trial, where it can become very expensive.
Typically, the costs would be expected to be anywhere between $5,000 – $50,000.
When it comes to who must pay the legal fees, there are some important things to note as costs are in the discretion of the Court’s ruling:
- Should the judge make an order for provision for the claimant, the estate will generally be liable to pay for the applicant.
- Should the judge make no order for provision for the claimant, the claimant may be ordered to pay the executor’s costs for defending the claim.
How Can Queensland Probate Help You?
Settling the estate of a loved one can be a trying, complicated matter that needs to be handled with the utmost care and expertise.
If you’re looking at contesting a will in Queensland then it is recommended that you seek the advice of one of our probate lawyers to help assess your unique case and provide you with consultation on the potential risks and outcomes.
Contact us directly to arrange a consultation to discuss using our services or come see us in person at our offices in Brisbane.