Looking to contest a will or wondering how to stop someone contesting a Will in Australia? If you want to make a iron-clad will, there is a few things you need to know.
Firstly, contesting a Will in Australia depends on what State you are in. While the laws of the State mostly align, for the purposes of this article, we will focus on contesting a Will in Queensland. If you are in another state of Australia, don’t hesitate to call us on (07) 3073 2405 and we can give you some detailed advice on same.
In Queensland, if you have been left out of a will and you feel as though you have been treated unfairly, you can make what is known as a Family Provision Application. In the State of Queensland, whether you will be able to make a Family Provision Application depends on the terms of the Succession Act 1981 (Qld) (‘the Act’).
Contesting a Will is different to challenging a will in Queensland. A person may challenge a will if they believe for example the person did not have capacity to make the will at the time it was executed. For the purposes of this article we will focus on contesting a will in Queensland but if you need any clarification, feel free to ring our office on (07) 3073 2405.
Contact our Expert Contesting a Will Solicitors Brisbane & QLD
For urgent advice on how we can help you contest a Will in QLD, contact Will and Estate Lawyers Australia today.
When Can A Will Be Contested in QLD?
While some laws regarding challenging a will differ, particularly in NSW, the most common reasons to challenge a will are the same across all states of Australia. A will incorrectly executed or witnessed, or a will which shows signs of being tampered with are the most common reasons for challenging a Will. Other reasons include that the testator lacked testamentary capacity or if the will maker was unduly influenced or threatened to make the will in a certain way.
Read the following guide to challenging a will in Brisbane or QLD, Australia.
Preventing Legal Challenges to Wills
It is possible to take steps stop your Will being challenged. Those strategies include making gifts during your lifetime (known as inter vivos gifts) through to creating family trusts during your lifetime or registering property as joint tenants.
The Complete Guide to Challenging a Will in QLD
These eligible parties who may feel hard done by through you leaving them out of your will need to make a family provision application within the relevant time period.
Firstly, the party wanting to contest the will must give notice in writing to the executor within 6 months of the date of death. From there, the spouse, child or the dependent must file their claim within 9 months after death of the deceased.
Not everyone is eligible to contest a will. In fact The Act specifies a defined class of persons who are eligible to contest a will.
Before 2015, Victoria had very flexible legislation which did not specify who was able/not able to make a claim in a will. Even after the most recent amendment of the Administration and Probate Act 1958 (Vic) the Victorian legislation goes so far as allowing a grandchild to contest a will. This is not the same in Queensland, where there is a much narrower category on who is eligible to contest a will.
Section 40-44 of the Qld Act specifies who can make a Family Provision Claim in the State:
41 Estate of deceased person liable for maintenance (1)If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.
Essentially, section 40-44 of the Act provide that the only persons who are eligible to contest a will in Qld include a child (including a stepchild), spouse or a dependent.
If the person is an eligible person and have make a Family Provision application within time in QLD, the Court will consider whether any provision should be made for the applicant’s proper maintenance, education and advancement in life.
Here are some of the factors that a Court will take into account to determine whether a eligible person should receive any provision under a will they have been left out of under a family provision application:
The parties relationship (was it a good or bad relationship over the years);
Did the deceased have any obligations or responsibilities to the person;
The value of the deceased estate (the larger an estate the more likely a Court will make provision for the party);
The financial circumstances of the applicant (whether they have means to adequately take care of themselves);
Whether the applicant has any physical or mental disability;
Whether the deceased has made any provision for this person already throughout their lifetime;
Whether the applicant many any support for the deceased.
Note: There are other factors a Court may consider.
At Will and Estate Lawyers Australia, we help eligible people contest a will on a no win no fee basis. Free free to give us a call and one of our friendly lawyers will be happy to provide you with a free consultation to let you know if we can assist
As it is difficult to cut an eligible party out of a will, the majority of our cases are successful at Court.
Answer: Unlike other jurisdictions, you do not need a grant of probate to be able to contest a will in QLD.
Answer: The size of the estate, the strength of your claim and the potential needs of other beneficiaries will determine whether it's worthwhile disputing a will. Contact our will dispute lawyers for a free case assessment.
Read more about the high success rate of contesting a will.