Contesting a Will in Queensland means to dispute whether adequate provision has been made for someone in the Will. It is also commonly referred to as a Family Provision Application or claim. Contesting a Will is different to Challenging a Will which occurs where there is a question about whether the Will is valid.
Although everyone has Testamentary Freedom to make a Will benefiting whoever they wish, a Will maker also has a duty to adequately provide for who would reasonably expect to benefit from their estate.
If you or a family member have been unfairly left out or cut out of a will, contact a Will Dispute Lawyer today for a free consultation to learn about your options.
If you are making a Will and are concerned about making it “challenge-proof” or want to know how to stop someone contesting a Will in Australia, arrange a consultation with our team today to discuss strategies to avoid a will dispute.
Why you need a Will Dispute Lawyer
At Will and Estate Lawyers Australia, we help clients resolve all manner of succession law problems. You may want a Will Dispute Lawyer to help with these common will disputes:-
- Contest a Will – if you have been left out of a will or feel you have been unfairly provided for. We can assist to make a family provision application, often on a no win, no fee basis.
- Challenge a Will – due to incapacity, undue influence, duress or fraud you may want to dispute a will.
- Defend a Contested Will – if you are an Executor of a contested will, or if you have been told by someone they plan to contest the will, we can help you to comply with your duty to uphold the will and defend the application. We can often help by deferring payment of fees until the dispute has been resolved.
- Protect your entitlement – if you are a beneficiary of a contested will, your inheritance is under threat. An Executor has a duty to uphold the Will for your benefit. However, sometimes beneficiaries want their own representation. We act for beneficiaries to ensure their voice is heard.
- Interpret a Will – if the wording of a will is unclear a lawyer can advise about the correct interpretation of ambiguous clauses. We can also apply to the Supreme Court for an order ruling on the meaning of a will to ensure the Executor is not liable for improperly distributing assets.
- Rectifying a Will – if there is a clerical error or mistake in the Will, a s 33 Succession Act 1981 (Qld) Application may be made to rectify a will.
- Challenge a transaction – if a person was influenced to give away or transfer property at an undervalue, the transaction can be reversed by the Court if it was deemed to be unduly influenced.
We offer a free assessment of your case and a no win, no fee policy for certain claims.
What are the Ground for Contesting a Will?
Each State has laws which specify the grounds for contesting a Will. It is fairly common ground across Australia that a Will may be contested by someone expected to be included, but has discovered the Will does not provide for their:-
- Proper maintenance and support;
- Education; or
- Advancement in life.
Lack of testamentary capacity, duress, fraud and undue influence are often cited as grounds for contesting a Will, although it’s more appropriate to consider those as grounds to challenge a Will.
Strict time limits apply to making a claim on a deceased estate. Experienced Will Dispute Lawyers will be able to assess your claim and let you know where you stand. Contact us today on 07 3073 2405 for an obligation-free consultation.
How do you challenge an Estate?
If you have been cut out of a will or unfairly left out, follow these steps to contest a Will in Queensland:
- Contact a Wills and Estates Lawyer for a free consultation and case assessment. Bring a copy of the Will and any documents you have which support your claim (letters, bank statements). They can advise you whether you are eligible to dispute the will and if your claim has good prospects of success. At Will and Estate Lawyers Australia, we regularly act for clients on a no win, no fee retainer.
- Within 6 months of the date of death, give notice of your intention to file an application to contest a will to the Executor.
- Prepare an Originating Application, Affidavit(s) and draft Directions Order. The Affidavit must detail why you are entitled to make the application and that adequate provision has not been made for you. A draft Directions Order is also included which sets a schedule for when documents must be filed and negotiations held. Your Will Disputes Lawyer can prepare these for you.
- Within 9 months of the date of death, file the Family Provision Application in the District or Supreme Court of Queensland Registry. Sealed copies of the Application and supporting material are served on the Executor of the Estate and/or their lawyers.
- Within 14 days of being served with the draft Directions Order, the Executor must sign and return it or put forward an alternative proposal. The counter-signed Order is filed with the appropriate Court Registry.
- The Executor must file an Affidavit in the time permitted by the Directions Order (usually 4 – 8 weeks of being served) which includes a list of estate assets and liabilities. It must also include (as appropriate) any information about the assets, liabilities and income of any other beneficiaries with a competing claim, and any other material relevant to the issues in dispute.
- The Applicant, the Executor and other parties to the Application may file further Affidavit material. Usually another 4 – 6 weeks is allowed for this process.
- Lawyers for each party correspond to resolve the dispute or to narrow some of the issues in dispute.
- The parties attend mediation where they attempt to resolve the dispute in an informal setting. A Mediator – usually an experienced Will Disputes Solicitor or Barrister – facilitates negotiations. Before a Mediation is scheduled, the parties must give an undertaking to participate in a reasonable and meaningfully manner. The majority of Family Provision claims are settled through mediation.
- If the Will Dispute is not resolve at mediation, the Applicant files a request for trial date and the case will be decided by the District or Supreme Court following a hearing.
If you want to know whether you may be eligible to contest a Will, or if you’re an Executor of a Will which has been contested, Contact Will and Estate Lawyers Australia today for a free consultation.
Challenging a Will in QLD – FAQ
A will can be challenged on the following grounds:-
- Lack of testamentary capacity. Where the person did not know what they were doing when the Will was signed.
- Undue Influence & Duress. Where the will maker was unduly influenced or threatened to make the Will in a certain way.
- Incorrect Execution. One of the requirements to making a valid Will is having it witness by at least 2 witnesses who do not stand to receive a benefit from the Will.
If you believe a Will was not signed correctly or there is an error, or if there is evidence of incapacity, fraud, duress or influence you should act quickly to protect your rights. If the challenge is successful, the Court may declare the Will invalid.
If you believe there is an issue or error with a Will, you may lodge a caveat which will prevent the granting of probate or letters of administration for 6 months. Strict time limits and procedures apply, so if you have any doubts about the creation of a Will, schedule a free consultation with a Will Dispute Lawyer today by calling 07 3073 2405.
What happens if a Will is declared invalid?
If a Will is declared invalid, the previous Will becomes the operative Will. If the previous Will is also invalid and/or if there is no previous Will, the estate will be distributed in accordance with Queensland intestacy laws and an eligible person (usually a spouse, child, parent or another family member) will usually obtain a Grant of Letters of Administration to enable them to legally distribute the estate.
Defending a Contested Estate
If you are the Executor or beneficiary of an estate, you may be affected if someone contests or challenges a will. The Executor of a Will has a duty to uphold the Will and defend the application.
How a Will may be Contested
A will may be contested on the basis that it fails to make adequate provision for a spouse, child or dependant. Known as a Family Provision Application, an Executor has a duty to defend the application. The Executor also has duties to act reasonably which includes taking advice about the Applicant’s prospects and negotiating a settlement where appropriate.
The Executor of a contested Will is named as defendant on the Family Provision Application. They will be required to file an Affidavit detailing the financial circumstances of the estate including assets, liabilities and total value.
Defending a Will Challenge
If you are the Executor of a challenged Will you need to prove the Will is valid. The procedure for a challenged will dispute is known as applying for probate in solemn form.
How a Will may be Challenged
A Will can be challenged on the grounds the will-maker lacked capacity, were unduly influenced or placed under duress to make the Will in a certain way, or it was simply not executed correctly. As Executor you may receive notice that a caveat has been lodged which temporarily prevents probate being granted. The usual procedure is to file an Application for Probate in Solemn Form. The case is determined by the Court after examining the evidence and legal positions put forward by the parties.
Let a Wills and Deceased Estate Litigation Lawyer get you fair Compensation
We take on all cases which have merit. Contact our legal team today for a free case assessment on 07 3073 2405 or use the contact form below.