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Contesting A Will in QLD


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505

Alun Hill

In QLD, if a person has been left without adequate provision from a deceased estate, they can contest the Will. The legal term for this kind of matter is a "Family Provision Application". In order to successfully contest a Will, a person must be an eligible person in relation to the deceased’s estate.

Our team practices exclusively in Wills and Estates Law and are here to guide you through the process to the best possible outcome. If you are considering contesting a Will, or if you have a question, we encourage you to call us on 1300 168 676 for a free initial case assessment.

Each State of Australia has a different set of rules which apply when contesting a Will. There are different time limits and eligibility differs in each State depending on where the deceased died. If the deceased died in Queensland, the information below is relevant.

Almost all of our Contesting a Will work in QLD is done on a No Win No Fee basis.


Grounds for Contesting a Will in QLD

In Queensland you have grounds to contest a Will if:

  1. You are an eligible person (See Who can contest a Will in QLD? (Eligible Applicants) ); and
  2. You believe that you have been left without adequate provision for your proper maintenance and support out of the estate of the deceased.

The Court may consider a range of factors, including:

  1. The financial position of the beneficiaries (and any other claimants);
  2. The nature and extent of your relationship with the deceased;
  3. Any support provided to you by the deceased during his/her life;
  4. Any statements or promises made by the deceased to you about how he/she would divide their estate;
  5. The standard of living to which you are accustomed;
  6. Any contribution you made to the size of the deceased's estate;
  7. Any other matter which the court considers relevant.

It is very difficult to define "adequate provision" and it varies from case to case. Given that each case is unique, we recommend you call us for a free case assessment.

For further information regarding the matters the Court can consider see: What does the court consider when making a claim? question below.


To discuss whether you have a case, please call us on 1300 168 676 for a free case assessment.

How to Contest a Will in QLD?

A Family Provision claim can only be made in QLD if either:

  1. There is real property (i.e. land) owned by the deceased situated in Queensland; and/or
  2. The deceased was domiciled (i.e. living permanently) in Queensland at the date of his or her death and owned personal property elsewhere, and/or held other assets.

If you are thinking of making a claim, you should act immediately. It is possible that estate assets might be sold or distributed and any monies may be spent. If you delay in making a claim, there may be no assets or funds to claim against. There are also strict time limits which apply to family provision applications in Queensland.

If you would like to discuss making a claim, you may contact our office to speak to one of our lawyers.

Our lawyers will talk to you about your matter. Often, we are able to settle our clients’ claims without going to court. We can start court proceedings for you if the executor and/or beneficiaries do not want to settle.

To discuss your case, please call us on 1300 168 676.

Who can contest a Will in QLD? (Eligible Applicants)

In order to contest a Will in Queensland, section 41 of the Succession Act requires a person to fall within one or more of the following categories of eligible applicants:

  1. The deceased’s spouse;
  2. The deceased’s child; and/or
  3. The deceased’s dependant.

The terms "spouse", "child" and "dependant" are defined in the Succession Act. A summary of the types of persons who might fall within each category is set out below.

Spouse

The following persons may be a "spouse" and therefore eligible to contest a Will in QLD:

  1. The deceased’s husband or wife;
  2. The deceased’s de facto partner;
  3. The deceased’s registered partner (pursuant to the Relationships Act 2011); and
  4. The deceased’s former husband, wife or registered partner.

Child

The following persons may be a "child" and therefore eligible to contest a Will in Queensland:

  1. The deceased’s natural (biological) child;
  2. The deceased’s unborn child;
  3. The deceased’s lawfully adopted child; and
  4. The deceased’s stepchild.

Dependant

The following persons may be a "dependant" and therefore eligible to contest a Will in Queensland:

  1. The deceased’s parent;
  2. A parent of a child of the deceased (provided that the deceased’s child is under eighteen);
  3. Any person under the age of eighteen who was being maintained by the deceased at the date of death, regardless of their relationship with the deceased (this could include, for example, the deceased’s grandchild or step-grandchild, former step-child, brother or sister, niece or nephew or foster child.

In order for any person to be a "dependant" they must have been "wholly or substantially maintained" by the deceased person at the date of the deceased person’s death.

If you think you might be eligible to contest a Will in QLD, we recommend you call us for a free case assessment on 1300 168 676

How long do I have to contest a Will in QLD? (Time Limits)

In Queensland there are time limits that apply for contesting a Will.

If a person wants to contest a Will in Queensland, first they must give notice to the executor that they intend to contest the will of the deceased. This notice should be in writing and must be given within six months of the date of death. If the executor does not receive notice of a potential claim, after six months has passed they can distribute the estate and there may be no estate assets left to claim against.

If a person wants to contest a Will in Queensland and does not give notice of their intention to claim until after six months from the date of the deceased’s death, they can still give their notice outside this time. If the estate has not been distributed at the date when the notice is received, the executor should not distribute the estate until after the limitation date.

The second time limit which applies to family provision applications in Queensland requires a claimant to file their application in the court within nine months of the date of the deceased’s death. This is what is meant by the "limitation date".

In certain cases, "out of time" applications can be made, however this is at the discretion of the Court. In deciding whether to allow an "out of time" application, the court Will consider a range of factors, including:

  1. The length of the delay;
  2. The reason for the claimant’s delay;
  3. Whether the estate has been distributed; and
  4. Whether the claimant has engaged in any unconscionable conduct.

We encourage you to make contact with our team on 1300 168 676 for a free case assessment even if you have exceeded the nine month time limit.

How do I get a copy of a Will in QLD?

When a person passes away, it is common for their relatives and loved ones to be unaware of the terms of the deceased person’s Will.

To obtain a copy of the deceased’s Will, you should contact the executor or the solicitor acting for the estate. The executor is the person responsible for administering the deceased’s estate.

In QLD, you are entitled to inspect and obtain a certified copy of a deceased person’s Will if you are:

  • Mentioned in the Will (even if you are not mentioned by name);
  • Mentioned in any earlier Will as a beneficiary (even if you are not mentioned by name);
  • A spouse, parent or issue (e.g. child) of the deceased person;
  • A person who would be entitled to a share of the estate if the deceased died without a Will (intestate);
  • A parent or guardian of any minor falling within categories 1 and 4 above;
  • A creditor or other person with a legal claim against the estate;
  • A person who may contest the Will by making a family provision application.

If you fit into one or more of the above categories, a person in possession or control of the Will or a copy of the Will (if the original has been lost, stolen or destroyed) must allow you to inspect the Will or copy of the Will and give you a certified copy upon request. This is required by section 33Z of the Succession Act 1981.

If required by the Court, a person who has possession or control of the Will or a copy of the Will must produce it to the Court.

You should consult a lawyer if you are having difficulty obtaining a copy of the Will. Your lawyer can consult with the executor or commence court proceedings.

In the event the deceased left no Will, an application for Letters of Administration might be required. See Dying Without a Will below for more information.

Costs of Contesting a Will in QLD / Who pays fees?

In Queensland, costs are in the discretion of the court, but usually they follow the event. This means that the successful party in legal proceedings Will usually have some of their legal costs paid by the other party. Specifically in relation to proceedings to contest a Will, the court may have regard to whether a party has failed to comply with the rules or a practice direction of the court, whether irrelevant material was put before the court, the size of the estate, any offer of settlement made by the parties and any other matter that the court considers relevant.

If the Judge makes an order for provision for the applicant, the estate Will usually pay the applicant’s standard costs.

If the applicant is unsuccessful and the Judge makes no order for provision for the applicant, the Judge may order the applicant to pay the executor’s costs of defending the proceedings. This is why we recommend that you seek advice from a lawyer who specialises in this area of law. We assess your case and advise you on the strength of your case and likely outcomes.

We offer a variety of cost agreements in these cases including "No Win No Fee" costs agreements.

To discuss costs in greater detail call us on 1300 168 676.

Dying without a Will? (Intestacy)

When a person dies without a Will, they are said to have died Intestate.

In circumstances where a person does not have a Will or the Will cannot be found, an administrator is appointed by the Court to distribute the estate of the deceased according to the intestacy rules. When an administrator is appointed by the Court, it is called a grant of Letters of Administration.

It is these Letters of Administration that enable the administrator to act as the representative of the estate. Once appointed, the role of an administrator is similar to the role of an executor (where a person died with a Will). Once Letters of Administration is granted, the administrator gathers in the estate, pays out any outstanding liabilities and distributes the estate in accordance with the intestacy rules. A summary of the intestacy rules is set out below.

Where the deceased person has at least one spouse and issue (e.g. children)

  1. The spouse is entitled to $150,000.00 and the "household chattels" plus:
    1. half of the remainder of the estate (if there is only one surviving child); or
    2. one-third of the remainder of the estate (if there is more than one surviving child.

    If there is more than one person who fits the definition of "spouse" then the spouses can agree about how the estate is split between them or the court can make an order. If neither of these steps occur, the executor may distribute the entitlement between the spouses evenly.

  2. The issue of the deceased are entitled to the remainder of the estate.

Where the deceased person has at least one spouse but no issue (e.g. children)

  1. The spouse is entitled to the whole estate. If there is more than one person who fits the definition of "spouse" then the spouses can agree about how the estate is split between them or the court can make an order. If neither of these steps occur, the executor may distribute the entitlement between the spouses evenly.

Where the deceased person was survived by issue (e.g. children) but no spouse

  1. The deceased’s issue are entitled to the whole estate. NB:- "issue" usually refers to lineal descendants of the deceased such as children, or grandchildren (where their parent, the deceased’s child, is deceased).
  2. If there are no issue, the deceased’s parents are entitled to the whole estate.
  3. If there are no issue or parents who survive the deceased, the deceased’s next of kin are entitled to the estate in the following order:
    1. Brothers and sisters (including the children of a brother or sister who did not survive the deceased i.e. the deceased’s nieces and nephews);
    2. Grandparents;
    3. Uncles and aunts (including the children of an uncle or aunt who did not survive the deceased i.e. the deceased’s cousins);
  4. If there are no next of kin who survive the deceased, the estate is said to be bona vacantia and the Crown (i.e. the government) is entitled to the whole estate.

What happens if the Will is not valid?

You may be able to challenge the validity of a Will if you think:-

  1. The deceased did not have the mental capacity to make a Will;
  2. The Will was forged;
  3. That the deceased was unduly influenced in making the Will; or
  4. There is fraud involved.

Undue Influence

Was there any tickery, force, pressure or fear involved when making the Will?

If you believe that any of the above options may apply to you, please call us on 1300 168 676.

What does the court consider when making a claim?

In Queensland, a Court may take various matters into consideration in determining whether to make a family provision order. Given the number of factors involved it is very important to seek early advice on your unique situation.

The Succession Act does not provide a list of factors for the court to consider when a person contests a Will, however case law suggests that the following factors are usually take into account:

  1. The applicant’s financial position,
  2. Whether any other person is liable to support the applicant;
  3. Whether the applicant is bound to support an other persons;
  4. The applicant’s health;
  5. The deceased’s influence on the applicant’s lifestyle;
  6. The age of the applicant;
  7. The size and nature of the deceased’s estate;
  8. The strength of any competing claims to the deceased’s estate;
  9. The relationship between the deceased and the applicant;
  10. The relationship between the deceased and other persons who might have a claim to a share of the deceased’s estate;
  11. Any contribution made by the applicant or a beneficiary to the build up of the deceased’s estate;
  12. Any conduct on the part of the applicant which might disentitle them to an order for provision; and
  13. Any other matter which the court considers relevant.


Can Grandchildren contest a will in QLD?

In Queensland, grandchildren of the deceased are not usually eligible to contest a will. The only people who are eligible to contest a will in Queensland are a "spouse", "child" or "dependant" of the deceased person.

A person who is a grandchild of the deceased may be eligible to contest a will if they fall within the category of "dependant" of the deceased. The Succession Act provides that the following people may be a dependant of the deceased:

  1. a parent of that deceased person; or
  2. the parent of a surviving child under the age of 18 years of that deceased person; or
  3. a person under the age of 18 years (usually an eligible grandchild will fit into this sub-category).

In addition to falling into one of the above three categories, in order to qualify as a dependant of the deceased, a grandchild must have been "wholly or substantially maintained or supported" (otherwise than in exchange for money) by the deceased person at the time of the person's death.

In rare circumstances, a biological grandchild of a deceased person may be eligible to contest a will as a "child" of the deceased. This is only possible if the grandchild was lawfully adopted by the deceased and accordingly became their adopted son or daughter.

If you are a grandchild of the deceased and believe that you are eligible to contest the deceased’s will, please call us on 1300 168 676 for a free case assessment.

Can a Niece or Nephew Contest a Will in Queensland?

In Queensland, nieces and nephews of the deceased are not usually eligible to contest a will. The only people who are eligible to contest a will in Queensland are a "spouse", "child" or "dependant" of the deceased person.

A person who is a niece or nephew of the deceased may be eligible to contest a will if they fall within the category of "dependant" of the deceased. The Succession Act provides that the following people may be a dependant of the deceased:

  1. a parent of that deceased person; or
  2. the parent of a surviving child under the age of 18 years of that deceased person; or
  3. a person under the age of 18 years (usually an eligible grandchild will fit into this sub-category).

In addition to falling into one of the above three categories, in order to qualify as a dependant of the deceased, a niece or nephew must have been "wholly or substantially maintained or supported" (otherwise than in exchange for money) by the deceased person at the time of the person's death.

In rare circumstances, a biological niece or nephew of a deceased person may be eligible to contest a will as a "child" of the deceased. This is only possible if the niece or nephew was lawfully adopted by the deceased and accordingly became their adopted son or daughter.

If you are a grandchild of the deceased and believe that you are eligible to contest the deceased’s will, please call us on 1300 168 676 for a free case assessment.





where to next?

Have you been left without adequate provision from a deceased estate? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505

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