Can you contest a Will if you are in it?

What happens when someone dies and their will leaves you much less than you expected or were promised?

In this article we answer the question of “Can you contest a Will if you are in it?” and discuss what options are available to you.

There are lots of situations where you may want to contest a Will even if you are named in it:-

you are named as a beneficiary, but you are only left a small or token sum;
the Will does not reflect promises made to you by the deceased during their lifetime;
the gift to you in the Will does not adequately provide for your ‘needs’ in any other way.

Discovering the Will won’t provide what you were expecting can be extremely stressful.

The good news is you can contest a Will even if you are in it, provided you are eligible to contest it and you application within 9 months of the death. This is type of claims is known as a Family Provision application.

This article discusses when you may contest a will, which is where you agree the Will is valid but claim it does not adequately provide for you.

If you believe the Will is not valid because the will-maker did not know or intend to make the Will in a certain way, you can learn about challenging a Will because of undue influence, incapacity or fraud.

You don’t need to agonize over your rights and eligibility to challenge a will. Our Will Dispute Lawyers in Brisbane offer a free case assessment and consultation. No obligations. No stress. Just information to help you make an informed decision. Call us on 07 3073 2405.

Are you eligible to contest the Will you are a beneficiary of?

Your right to contest a Will in Queensland comes from the Succession Act 1981 Qld.

You may contest a Will you are named in if you are an eligible person:-

a spouse (including de-facto spouse);
child (including step-child); or
a person who was substantially maintained or supported by the deceased and you are their parent, child under 18 years of age or the parent of a child of the deceased who is under 18 years of age.

If you don’t fall into one of these categories, you should consult with an Estate Dispute Lawyer to see if you may still be eligible.

What you must show

In your affidavit supporting the Family Provision application you must show:-

the provision made for you in the Will is inadequate for your maintenance; and
what provision should have been made for you.

Whether adequate provision was made for you depends on the circumstances of the estate and your personal circumstances.

Factors it takes into account include the size of the estate, assistance provided to you by your spouse during his lifetime, other competing claims etc.

Setting out what provision should have been made for you will depend on your needs. Usually this will be a larger financial component but it may also include a life interest in the deceased’s home (right to reside).

Speak with an Estate Lawyer today for a free assessment and to see if we can take your claim on a no win, no fee basis.

Do time limits apply?

Strict time limits do apply for anyone contesting a Will in Queensland. Ensure you comply with these time limits:-

Give notice to the Executor of your intention to contest the will within 6 months of the date of death;
File a Family Provision application with the Supreme Court of Queensland within 9 months of the death.

These time limits are crucial. If you fail to comply you will likely forfeit any right to contest the estate.

If you aren’t sure whether you’re still in time, contact us for an assessment. Remember, you can still challenge a Will even after probate has been granted.

At Will & Estate Lawyers Australia, we understand the loss of a loved one is traumatic. The succession law process can be complex and difficult to navigate without years of training and experience.

Access to justice is the cornerstone of our practice. That’s why we offer no win, no fee terms if we believe you have been inadequately provided for in a will.

Contact a Wills and Estate Lawyer today for a free case assessment and consultation. Call us on 07 3073 2405 or using the contact forms.