When an individual passes away, the executor named in their will is responsible for initiating the process of fulfilling the will’s terms. However, there are instances where the will may be dated and not inclusive of individuals who should rightfully benefit from the deceased’s estate.
In this guide, we will explore the procedures for Contesting a Will after Probate has been granted, along with key considerations to keep in mind during this complex legal process.
Can I Contest a Will in Queensland after Probate has been Granted?
In Queensland it is possible to contest a Will even after probate has been granted. However, it is crucial to act swiftly because it becomes increasingly challenging to contest a Will once assets have been distributed or disposed of. Understanding the limitations and timeframes involved in contesting a will is essential. It is strongly advised to seek expert legal advice as soon as possible if probate has already been granted and you wish to contest a Will.
What is a Grant of Probate?
A Grant of Probate is a legal document issued by the Supreme Court of Queensland, which legally recognises the validity of a Will and confirms it as the last Will of the deceased. The Grant of Probate allows the executor to administer and distribute the deceased’s estate in accordance with the Will.
How to Contest a Will in Queensland
There are two options to contest a Will in Queensland:-
- Family Provision Application
A Family Provision Application is made when an applicant has been left without adequate provision for their maintenance and support. When the court considers this type of claim they consider various factors, including financial and medical needs, the applicant’s relationship with the deceased and the overall size of the estate. In Queensland, a spouse, child or dependent can commence a Family Provision Application.
- Challenging the validity of the Will
Challenging the validity of a Will can be pursued when a person believes that the deceased lacked testamentary capacity at the time of drafting the Will. Challenging the validity of a will requires a substantial amount of evidence to disprove the validity, and the burden of proof lies with the person contesting the will.
Contact our no win, no fee lawyers for family provision claims for a complimnatery obligation-free consultation to see where you stand.
How Long do I have to make a Family Provision Application?
There are strict time limitations in Queensland for contesting an estate through a Family Provision Application. An eligible applicant has 6 months from the date of death to provide written notice to the executor of their intention to bring a claim. The applicant must then file Court proceedings within 9 months of the date of death.
Can I make a Family Provision Application after probate has been granted?
A Family Provision Application can be made after probate has been granted as long as the applicant is providing their written notice within 6 months of the date of death. Even if probate has been granted an executor should wait 6 months, from the date of death, to distribute assets. This means that if probate has already been granted and more than six months have passed, since the date of death, you may not be able to make a Family Provision application and assets may have already been distributed. However, it is important to consult with an estate litigation specialist to discuss your circumstances as there may be exceptions to consider.
Can I challenge the validity of a Will after Probate has been granted?
Challenging the validity of a will is harder after probate has been granted as probate recognises a Will’s validity. However, it is important to consult with an estate litigation specialist to discuss your circumstances.
Final Thoughts
If you wish to contest a Will in Queensland, and you have found out that probate has been granted, it is important to act as soon as possible to ensure you comply with the time limits. It is highly recommended that you seek legal advice from an experienced estate litigation solicitor to understand the specific requirements, time limits and procedures involved. The solicitor will provide you guidance based on your individual circumstances and help you understand the legal process.
Call Will and Estate Lawyers Australia for a free one hour consultation (note out free consultations only apply for will contesting matters) – (07) 3073 2405
Office Location and Contact Details
Brisbane (by appointment only)
Will and Estate Lawyers Australia
Level 1 / 16 McDougall St
Milton QLD 4064
Phone: 07 3073 2405
Email: enquiry@willandestatelawyers.com.au
