If you are unsatisfied with a family member’s Will, you need to know if you can make a claim against the estate. In Queensland, the law gives certain family members and dependants the right to "contest" a Will through what is known as a family provision claim. This process does not dispute the validity of the Will itself. It accepts the Will as valid but asks the court to adjust the distribution so that you, if you are an eligible person, are properly provided for. Eligibility to contest is outlined below.
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What It Means to Contest a Will
Contesting a Will in Queensland is governed by the Succession Act 1981 (Qld). The Supreme court of Queensland can step in if you have been left without adequate provision for your maintenance and support. This means even if the Will is legally valid, it may still be adjusted to make adequate provisions for eligible persons.
It is important to note the difference between contesting and challenging a will.
Contesting a Will means accepting the Will as valid but asking the court to alter the distribution. Challenging a Will means arguing that the Will itself is invalid, for example, due to incapacity of the Will maker at the time the Will was made or undue influence – In that another person has influenced the making of the Will in improper circumstances. The outcome could see the Will set aside altogether or affirmed. It all depends on the facts of each individual matter.
Most disputes in Queensland fall into the first category, which is contesting via a family provision claim.
Who Can Contest a Will in Queensland?
Not everyone has the right to make a claim. To do so, you must fall within a legally recognised category. These categories are:
- Spouse: including married partners, even if they are separated but never divorced, de facto partners living together in a genuine domestic relationship for at least 2 years, and even former spouses if they were still being financially supported.
- Children: biological or adopted children, dependent stepchildren, and even unborn children.
- Dependants: anyone substantially maintained or supported by the deceased, such as a grandchild, foster child, or parents in their care.
If you do not fall into one of these categories, you cannot contest a Will in Queensland.
Grounds for Contesting a Will
An eligible person does not automatically succeed in their claim. To be successful, an eligible person must stratify the court:
- That inadequate provision has been made for their proper maintenance and support.
- What your are asking from the estate is necessary for their proper maintenance and support in all of the circumstances.
Common examples of family provision applicants include:
- An adult child with disability or financial hardship left out of the will.
- A spouse who only received a small portion of the estate that is insufficient for ongoing living expenses.
- A dependent grandchild or stepchild who was not provided for despite reliance on the deceased.
How the Court Decides
The Supreme Court will consider a wide range of factors such as:
- The size of the estate and how much is available to distribute.
- Your financial position and health including income, debts, age, disabilities, or medical needs.
- Your relationship with the deceased and the nature and closeness of your bond.
- Contributions you made such as financial or personal sacrifices that helped build the estate.
Your behaviour, such as misconduct or estrangement can potentially reduce your claim.
The court balances your needs against the rights of other beneficiaries and the wishes expressed in the Will. Each case is unique, and outcomes vary.
The Process and Deadlines for contesting a Will
If you are considering contesting a Will in Queensland, timing is everything.
- Within 6 months of death, you must notify the executor in writing of your intention to claim.
- Within 9 months of death, you must file the family provision application in court
- If you miss these deadlines, your options become much more limited. Extensions are rare and only granted in exceptional circumstances.
Once filed, most cases have directions agreed including mediation. Many disputes settle without going to trial. If no agreement is reached at mediation, the matter proceeds to a court hearing where a judge makes the final decision.
Costs and Risks
If your claim succeeds, you can apply for your legal costs to be paid out of the estate. If you go all the way to court hearing and are unsuccessful, you may have to pay not only your own costs but also the estate's legal fees. It is imperative that you obtain legal advice from a Wills and Estate Lawyer. Many cases resolve before reaching court, especially when there are genuine needs and reasonable grounds. This is cost effective, as fees can also be negotiated at mediation.
Contesting a Will in Queensland is not about punishing or second-guessing the wishes of the deceased. The law steps in when a Will leaves a spouse, child, or dependent without adequate support. What constitutes "adequate support" is assessed on a case by case basis. Strict eligibility rules and deadlines apply, so acting quickly is critical.
If you are facing this situation, the most important step you can take is to seek guidance from us at MCG Legal. We can assess your prospects, help you navigate strict timeframes, and represent your interests whether in mediation or, if necessary, in court.
