Challenging a Will in Queensland

A Guide to Challenging a Will in Queensland: Know Your Rights and Options

Understanding the Basics of Contesting a Will

What is a Will and How is it Contested?

A will is a legal document that outlines how a person’s assets will be distributed after their death.

Contesting a will involves challenging the validity or fairness of the will, often due to concerns about the deceased person’s mental capacity, undue influence, or lack of adequate provision for family members.

The process of contesting a will can be complex and time-consuming, requiring the expertise of a lawyer with experience in will disputes.

Grounds for Contesting a Will

Validity of the Will

The Supreme Court of Queensland has the jurisdiction to hear will disputes and determine the validity of a will as a legal matter.

A will can be contested on the grounds of invalidity, including:

• Lack of mental capacity or testamentary capacity
• Undue influence or coercion
• Defective will drafting or execution
• Failure to comply with the Succession Act 1981 (Qld)

Laws in Queensland Regarding Challenging a Will

The Succession Act 1981 is the primary legislation governing succession in Queensland. Part 4 of this Act addresses family provision claims, which are claims made by family members, dependants, or domestic partners seeking a larger share of the deceased’s estate.

In addition to statutory laws, some aspects of challenging a will in Queensland are based on common law precedents. These include:

• Testamentary Capacity: Challenging a will on the grounds that the testator lacked the mental capacity to make a will, such as due to an intellectual or mental disability.
• Coercion and Undue Influence: Claims that the testator was coerced, unduly influenced, or under duress when making the will.

Understanding these legal frameworks can help you navigate the complexities of challenging a will in Queensland.

Family Provision Applications

Eligibility and Process

A family provision claim is an application to the court for a share or a larger share from the estate of a deceased person.

Eligible parties include the spouse of the deceased person, their children, and dependants who have been left without adequate provision.

The process involves filing a family provision application within nine months of the deceased person’s death and providing evidence of the applicant’s eligibility and need for provision.

Who Can Contest a Will?

Eligible Person

The following parties are eligible to contest a will:

• The deceased’s spouse
• The deceased’s children
• The deceased person’s dependants
• Other family members who have been left without adequate provision

An eligible person must demonstrate that they have been left without adequate provision and that the deceased had a moral obligation to provide for them.

Time Limits for Contesting a Will

How Long Do You Have to Contest a Will?

• In Queensland, family provision claims must be made within nine months of the deceased person’s death and notice of a claim must be given to the executor within six months.
• The time limit for contesting a will can be extended in exceptional circumstances, but this requires the approval of the court.

The Supreme Court’s Role in Will Disputes

Jurisdiction and Powers

• The Supreme Court of Queensland has the jurisdiction to hear will disputes and determine the validity of a will.
• The court has the power to make orders for the provision of adequate maintenance and support for an eligible person from the estate assets.
• The court can also make orders for the payment of legal costs and other costs associated with the dispute, generally from the estate assets.

Challenging a Will’s Validity

Steps to Take Before Grant of Probate

Once a grant of probate is obtained, an executor can immediately execute the testator’s instructions as outlined in the will. To apply for the grant, the executor must attest to the document’s validity, and the court must be satisfied of its authenticity before issuing the grant.

If you have doubts about the will’s validity, it is crucial to inform the executor as soon as possible after the deceased’s death and before the grant is obtained. You may consider lodging a caveat against the estate to prevent the grant from being issued without notifying you. The procedure for lodging a caveat is detailed in Chapter 15, Part 7 of the Uniform Civil Procedure Rules 1999. By lodging a caveat, you will compel the executor to initiate contested proceedings for the grant of probate, where the court will determine the will’s validity.

Understanding these steps can help you effectively contest a will before the grant of probate is issued.

Defective Will Drafting and Undue Influence

A will can be challenged on the grounds of defective will drafting, including:

• Ambiguous or unclear language
• Failure to comply with the Succession Act 1981 (QLD)
• Undue influence or coercion
• The court can declare a will invalid or make orders for the rectification of the will.

The court can declare a will invalid or make orders for the rectification of the will.

Testamentary Intentions

Interpreting the Deceased’s Wishes

The court’s primary consideration is the deceased person’s testamentary intentions.

The court will consider evidence of the deceased person’s wishes, including:

• The will itself
• Letters or other documents
• Statements made by the deceased person

The court can make orders for the provision of adequate maintenance and support for eligible parties.

Costs and Financial Risk

What Fees Can You Expect to Pay?

The costs of contesting a will can be significant, including:

• Legal fees
• Court costs
• Other expenses associated with the dispute

The court can make orders for the payment of legal fees and costs associated with the dispute.

In some cases, the estate may be required to pay the costs of the dispute.

Mediation and Alternative Dispute Resolution

Resolving Disputes Outside of Court

Mediation and alternative dispute resolution can be effective ways to resolve will disputes without going to court.

Mediation involves a neutral third-party facilitating a discussion between the parties to reach a resolution.

Alternative dispute resolution can include arbitration or other forms of dispute resolution.

Eligibility to Contest a Will in Queensland

In Queensland, to contest a will, you must first be eligible under the Succession Act 1981 (‘Act’). Eligible claimants include children, dependants, or spouses of the deceased. These categories are broader than they might initially appear, so if you’re unsure about your relationship status with the deceased, it’s advisable to seek legal advice.

Who Qualifies as a “Child”?

A “child” of the deceased includes step-children and adopted children. The Act specifies that a step-child can still make a claim against their step-parent’s estate even if their biological parent predeceased the step-parent. The relationship does not end with the death of the biological parent.

Definition of a “Dependant”

A “dependant” is defined as someone who was either partly or wholly maintained by the deceased. This includes individuals under 18, a parent of a child of the deceased who is under 18, or a parent of the deceased.

Understanding “Spouse”

The term “spouse” is extensively defined in Section 5AA of the Act. It includes married or de facto spouses, partners registered under the Relationships Act 2011, and in some cases, former partners who were still being maintained by the deceased.

By understanding these definitions, you can better determine your eligibility to contest a will in Queensland.

Proper Maintenance in Context

In the matter of Singer v Berghouse (1994) 181 CLR 201, the High Court set out the requirement for a two-stage process: (1) the Jurisdictional question, ‘…whether the applicant has been left without adequate provision for his or her proper maintenance [and support]’; and (2) the Discretionary question, ‘the court’s discretion as to what ought to be ordered for that particular applicant’.

Proper maintenance and support was expressed as, ‘having regard, among other things, to the applicant’s position, the size and nature of the deceased’s estate, the totality of the relationship between the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.’

‘Adequate’ and ‘proper’ establish independent tests regarding eligibility:

• Adequate – relates to actual needs of the applicant
• Proper – can only be determined in context of the circumstances of the case

This was endorsed by the High Court in Vigolo v Bostin [2005] 221 CLR 191.

Seeking Professional Advice

Finding a Lawyer with Experience in Will Disputes

It is essential to seek professional advice from a lawyer with experience in will disputes.

A lawyer can provide guidance on the process of contesting a will and the likely costs and outcomes.

A lawyer can also represent you in court and advocate on your behalf.

Do you need help challenging a will in QLD?

If you’d like a free initial consultation to discuss your particular circumstances you’re invited to make a booking via this page.