Contesting a Will in Queensland: Complete Guide to Family Provision Claims
Expert will contest lawyers helping eligible persons challenge unfair wills. No-win-no-fee arrangements available for family provision claims. Free case assessment.
On This Page
- What is Contesting a Will in QLD?
- Who Can Contest a Will?
- Legal Grounds for Contesting a Will
- Time Limits for Will Contests
- Family Provision Claims Explained
- The Court Process
- Costs of Contesting a Will
- No Win No Fee Arrangements
- Success Rates
- How to Start Your Will Contest
- Frequently Asked Questions
What is Contesting a Will in Queensland?
Contesting a will in Queensland means legally challenging the distribution of a deceased estate when you believe you've been unfairly treated. Under Queensland law, certain eligible persons can make what's known as a family provision claim (also called a family provision application) to seek adequate provision from the deceased estate.
When you contest a will in QLD, you're asking the court to review whether the will makes proper provision for your maintenance and support. This is governed by the Succession Act 1981 (Qld), which sets out who can make a claim and what factors the court will consider.
Key Distinction
Contesting a will is different from challenging a will. When you contest a will through a family provision claim, you're arguing the distribution is unfair. When you challenge a will, you're questioning the will's validity itself (for example, arguing the deceased lacked testamentary capacity or was unduly influenced).
Most people who contest wills in Queensland are spouses, children, or dependents who feel the deceased's will doesn't adequately provide for their needs. The court has discretion to order that proper provision be made from the estate for these eligible persons.
Who Can Contest a Will in Queensland?
Not everyone can contest a will in QLD. The Succession Act defines a specific class of eligible persons who have the legal right to make a family provision claim.
Eligible Persons Under Queensland Law
According to Section 41 of the Act, the following persons are eligible to contest a will:
- Spouse (including de facto partners)
- Child (including biological, adopted, and step-children)
- Dependent (someone who was being maintained by the deceased)
Important Note: Queensland has narrower eligibility than other states. Unlike Victoria, grandchildren cannot contest a will unless they can establish they were dependents of the deceased. This makes Queensland's laws more restrictive than New South Wales or Victoria.
Defining "Spouse" for Will Contests
In Queensland, a spouse includes:
- Legally married spouses
- De facto partners (must prove the relationship existed)
- Separated spouses (unless divorced)
Children Who Can Contest a Will
All children are eligible to contest a will, including:
- Biological children
- Adopted children
- Step-children (if they can establish they were treated as children of the family)
- Adult children (age is irrelevant)
- Estranged children (estrangement doesn't disqualify you)
Importantly, adult children can contest a will even if they're financially independent. The court will consider their financial circumstances, but financial need alone doesn't determine the outcome.
Dependents
A dependent is someone who was wholly or substantially maintained by the deceased person at the time of death. This might include:
- Elderly parents being supported by the deceased
- Grandchildren being raised by the deceased
- Former spouses receiving maintenance
- Disabled adults being cared for by the deceased
Legal Grounds for Contesting a Will in QLD
To successfully contest a will, you must prove that "adequate provision" was not made from the deceased estate for your proper maintenance and support. This doesn't require proving wrongdoing - simply that the distribution is inadequate for your needs.
What the Court Considers
When deciding whether to award a family provision claim, the court examines multiple factors:
| Factor | What the Court Assesses |
|---|---|
| Relationship Quality | The nature and duration of your relationship with the deceased, including any estrangement |
| Financial Need | Your current financial circumstances and resources |
| Estate Size | The value of the deceased estate (larger estates support stronger claims) |
| Deceased's Obligations | Any moral or legal obligations the deceased had toward you |
| Other Beneficiaries | The claims and needs of other beneficiaries |
| Disability | Any physical, mental, or intellectual disabilities affecting your capacity to support yourself |
| Prior Provision | Gifts or support provided by the deceased during their lifetime |
| Contributions | Any contributions you made to the deceased or their estate (financial or as a carer) |
Common Reasons for Successful Will Contests
- Inadequate Provision for Spouse: When a surviving spouse receives less than what's needed for their proper maintenance and support
- Child Left Out Entirely: When a child is excluded from the will without adequate justification
- Disproportionate Distribution: When one child receives significantly more than others without reasonable explanation
- Dependent Without Provision: When someone who was financially dependent on the deceased receives nothing
- Special Needs Not Addressed: When a disabled beneficiary requires ongoing care not provided for in the will
Time Limits for Contesting a Will in Queensland
Queensland has strict time limits for will contests. Missing these deadlines can permanently bar your claim.
The Two Critical Deadlines
Notice Period
You must give written notice of your intention to make a claim to the executor within 6 months of the date of death.
Court Application
You must file your family provision application with the court within 9 months of the date of death.
Can Time Limits Be Extended?
The court has discretion to grant leave to make a late application, but this requires demonstrating:
- Sufficient cause for the delay
- That granting leave would not unfairly prejudice beneficiaries
- That the estate hasn't been fully distributed
The court is reluctant to extend time limits, so it's critical to take action promptly. If you're approaching the deadline, contact our will dispute lawyers immediately for urgent advice.
Probate Not Required: Unlike other states, you do NOT need to wait for probate to be granted before commencing your will contest in Queensland. You can file within the 9-month period even if probate is pending.
Family Provision Claims: How They Work
A family provision claim (also called a family provision application) is the primary mechanism for contesting a will in Queensland. This process asks the court to order that proper provision be made for you from the deceased estate.
The Legal Test
The court must decide two questions:
- Was adequate provision made? Does the will (or intestacy) make adequate provision for your proper maintenance and support?
- What provision should be made? If provision is inadequate, what amount or property should you receive?
What "Adequate Provision" Means
"Adequate provision" isn't just about basic subsistence. The court considers what's appropriate given:
- The size of the estate
- Your relationship with the deceased
- Your current and future needs
- The deceased's obligations to you
- Community standards and expectations
Types of Orders the Court Can Make
If your family provision claim succeeds, the court can order:
- Lump sum payment: A specified dollar amount from the estate
- Transfer of property: Specific assets like the family home or investments
- Income stream: Periodic payments from estate income
- Life interest: Right to live in a property for life
- Combination: Multiple forms of provision
The Court Process for Will Contests in Queensland
Understanding the court process helps you prepare for your will contest. Most contested wills in Queensland follow this timeline:
Step-by-Step Process
- Notice to Executor (Within 6 Months): Your lawyer sends formal written notice to the executor stating your intention to make a family provision claim
- Attempt Negotiation (Recommended): Before filing, most lawyers attempt to negotiate a settlement. Many will contests resolve without court action
- File Application (Within 9 Months): If negotiation fails, file your family provision application with the Supreme Court of Queensland
- Serve Documents: Serve the application on all interested parties (executor, beneficiaries)
- Defence Filed: The executor or beneficiaries file a defence outlining their position
- Mediation (Court-Ordered): The court typically orders parties to attempt mediation before proceeding to trial
- Evidence Gathering: Both sides exchange evidence including affidavits, financial documents, and medical records
- Court Hearing: If mediation fails, the matter proceeds to a contested hearing where a judge decides
- Court Order: The judge makes orders determining what provision (if any) should be made
How Long Does It Take?
- Negotiated Settlement: 3-6 months
- Mediation Resolution: 6-12 months
- Contested Court Hearing: 12-24+ months
Most family provision claims (approximately 85-90%) settle before reaching a full court hearing. This saves time, costs, and emotional stress for all parties.
Costs of Contesting a Will in Queensland
Understanding the costs involved in contesting a will is crucial for making informed decisions. Legal costs for will contests vary significantly based on complexity and whether the matter settles or proceeds to court.
Typical Cost Structure
| Scenario | Estimated Legal Costs | Duration |
|---|---|---|
| Early Settlement (Pre-Filing) | $5,000 - $15,000 | 3-6 months |
| Mediated Settlement | $15,000 - $35,000 | 6-12 months |
| Contested Court Hearing (1-2 days) | $50,000 - $100,000 | 12-18 months |
| Complex Litigation (3+ days) | $100,000+ | 18-24+ months |
Who Pays Legal Costs?
In family provision claims, the court has discretion over costs orders:
- Successful Applicant: Usually awarded costs from the estate
- Unsuccessful Applicant: May be ordered to pay their own costs (and potentially the estate's costs if the claim was unreasonable)
- Estate Costs: The executor's reasonable costs of defending are typically paid from the estate
Cost Protection: Queensland courts generally take a more applicant-friendly approach to costs in family provision matters than in other litigation. Even unsuccessful applicants often don't face adverse costs orders if the claim was reasonable.
No Win No Fee Arrangements for Will Contests
At Will and Estate Lawyers Australia, we offer no win no fee arrangements for eligible family provision claims. This removes the financial barrier to accessing justice when contesting a will.
How No Win No Fee Works
- Free Case Assessment: We review your circumstances at no charge
- No Upfront Fees: If we accept your case, you pay nothing upfront
- We Cover Costs: We fund all legal costs throughout the matter
- Success Fee: Our fee is only payable if you receive a settlement or court award
- No Recovery, No Fee: If unsuccessful, you pay nothing
No Win No Fee Family Provision Claims
You only pay if your claim succeeds. No recovery = no fee.
Eligibility for No Win No Fee
We consider no win no fee arrangements for:
- Family provision claims with strong merit
- Estates with sufficient assets to support the claim
- Applicants who meet eligible person criteria
- Claims filed within the time limits
Success Rate of Contesting a Will in Queensland
Understanding the success rate of will contests helps set realistic expectations for your family provision claim.
Overall Success Statistics
Based on our experience with contested wills in Queensland:
- 85-90% of claims settle: Most family provision applications resolve through negotiation or mediation
- 70-75% receive some provision: When eligible persons have legitimate claims, most receive something from the estate
- 5-10% fully litigated: Only a small percentage proceed to a full contested court hearing
- Successful hearing outcomes: Of matters that proceed to hearing, approximately 60-70% result in some provision being awarded
Factors Affecting Success Rates
| Factor | Impact on Success |
|---|---|
| Relationship Status | Surviving spouses have highest success rates (90%+) |
| Financial Need | Greater financial need increases likelihood of success |
| Estate Size | Larger estates more likely to accommodate claims |
| Quality of Relationship | Strong relationships with deceased increase success |
| Timing | Claims filed promptly more likely to succeed |
How to Start Your Will Contest in Queensland
If you believe you've been unfairly treated in a will, taking the right steps early maximizes your chances of success when contesting a will.
Step 1: Gather Essential Information
Before contacting a lawyer, collect:
- Copy of the will (if available)
- Death certificate
- Your identification documents
- Evidence of your relationship with the deceased
- Details of your financial circumstances
- Information about estate assets (if known)
- Details of other beneficiaries
Step 2: Seek Legal Advice Immediately
Time is critical in will contests. Contact experienced will dispute lawyers as soon as possible. During your initial consultation, your lawyer will:
- Assess whether you're an eligible person
- Determine if you're within time limits
- Evaluate the strength of your claim
- Explain the court process and likely outcomes
- Discuss funding options including no win no fee
Ready to Contest a Will?
Contact our experienced will dispute lawyers for a free case assessment. We'll review your circumstances and explain your options - including no-win-no-fee arrangements for eligible claims.
Frequently Asked Questions
Yes, most people who contest wills receive some provision from the estate. Approximately 70-75% of eligible persons who make family provision claims are successful in obtaining additional provision. This high success rate reflects that most claims are genuine and involve situations where adequate provision wasn't made.
In Queensland, the primary ground for contesting a will is that adequate provision was not made for your proper maintenance and support. You must be an eligible person (spouse, child, or dependent) who can demonstrate that the will doesn't adequately provide for your needs.
While you cannot completely prevent someone from contesting a will, you can reduce the likelihood by: making adequate provision for all eligible persons, documenting reasons for any decisions, making lifetime gifts, creating family trusts, holding property as joint tenants, and including a clear explanation of your intentions in the will.
In Queensland, contesting a will is relatively accessible if you're an eligible person. The main challenges are: meeting the strict time limits (9 months from death), being classified as spouse, child, or dependent, demonstrating that provision is inadequate, and navigating the legal process. With experienced will dispute lawyers and no win no fee options available, many people successfully contest wills.
Yes, being left out of a will completely is often grounds for a successful family provision claim. If you're a spouse, child, or dependent and you've been entirely excluded, this may indicate that adequate provision wasn't made for your proper maintenance and support.
Costs vary significantly based on complexity. Early settlements may cost $5,000-$15,000 in legal fees, while contested court hearings can exceed $50,000-$100,000. However, we offer no win no fee arrangements for eligible family provision claims, meaning you pay nothing upfront and only if your claim succeeds.
Yes, adult children are eligible persons who can contest a will in Queensland. Your age doesn't disqualify you from making a family provision claim. However, your financial need and circumstances will be considered. Even financially independent adult children can succeed if the provision claim demonstrates that adequate provision wasn't made.
Don't Miss Your Deadline
You have only 9 months from the date of death to file a family provision application. Contact us today to protect your rights and ensure you meet all critical deadlines when contesting a will in Queensland.