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Contact Armstrong Legal:
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Perth: (08) 9321 5505
In Queensland, if a person considers a Will to be invalid, they can commence proceedings to "Challenge" the Will. When challenging a Will, the person argues the will is not valid and should not be approved by the court for a Grant of Probate.
Challenging a will is different from contesting a Will because usually, proceedings to contest a Will are brought after a Grant of Probate is made (there are some exceptions to this general rule). Until Probate is granted a potential claimant does not know which Will to contest.
"Probate" is proof of the Will and gives the executor the authority to collect all of the funds and property of the estate and distribute them to the persons named in the Will. The most common reasons for challenging a will are lack of testamentary (mental) capacity of the will maker, lack of knowledge and approval of the will maker, undue influence or fraud.
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 challenging 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 challenging a Will. If the deceased died in Queensland, owned assets in Queensland or a Grant of Probate is sought in Queensland, the information below may be relevant.
The term "challenging a will" refers to any litigation to challenge the validity of the will itself.
A person is eligible to challenge a will if they have an "interest" in the estate. To have an “interest” in a deceased person’s estate, you must be mentioned in a will of the deceased (either the last will or an earlier will) or be entitled to a share of the estate if the deceased person died with no valid will (the legal term for this is "intestacy").
There are many reasons for challenging the validity of a Will, including:
If you are concerned about the validity of a will, please don’t hesitate to give us a call on 1300 168 676. The process of challenging a will can be complex and confusing. Our team specialises exclusively in wills and estates law and are here to guide you through the process to the best possible outcome. We offer a free assessment of your case and a no win no fee policy. We understand that challenging a will is an emotional process and we will treat you with sensitivity and respect.
When a person intends to challenge a will in Queensland, the first thing they should do is file a caveat in the Registry of the Supreme Court. The legal term for a person who has filed a caveat is a "caveator". Once a caveat is filed, the Court will not make a Grant of Probate to any person claiming to be entitled to a grant without notice to the caveator.
If a Caveat has been filed in relation to an estate in Queensland, and an application for Probate is made, the Court will give notice to the caveator and the person who has applied for Probate. This notices requires the caveator to file a notice in support of their caveat within eight days of the date of service of the Court’s notice.
If the caveator does not file a notice in support of caveat in time, the Court can consider the application for Probate without reference to the caveat.
If the caveator files a notice in support of caveat in time, the Court cannot make a Grant of Probate until the caveat is withdrawn or set aside. Usually this means that the matter will need to be determined by a judge after a hearing. Either the caveator or the person who made the application for Probate can commence proceedings about the validity of the Will.
In Will disputes, it is always important to act quickly to preserve your rights. This is especially this case if a person wants to challenge a Will but a Grant of Probate has already been made by the Court. Once Probate has been obtained the executor is authorized to collect all of the funds and property of the estate and distribute them to the persons named in the Will.
If a Grant of Probate has been made in relation to a Will which a person suspects to be invalid, the can apply to the Court for an order requiring the executor to:
"Solemn form" means a court application to determine whether a Grant of Probate should be made in relation to a Will. In a solemn form hearing, the Court will consider the available evidence about the validity of the Will.
In the initial stages of administering an estate after a person has passed away, one of the first things an executor may be required to do is obtain a grant of probate. A grant of probate is issued by the court registry and verifies the authority of the executor to deal with the estate of the deceased. The requirement to obtain a grant of probate is dependent on a number of factors and an executor is not always required to obtain a grant of probate.
If a grant of probate is required, once an executor has obtained the grant they have authority to deal with and distribute the assets of the assets of the estate. Once an estate has been distributed, the opportunity to challenge the validity of the will is very limited. Therefore, ideally if you need to challenge the validity of a will you should seek legal advice at the earliest opportunity.
If you have concerns and are considering challenging the validity of a will, in order to prevent the executor from obtaining a grant of probate of a will suspected to be invalid, it is possible to file a probate caveat in the court registry. A probate caveat prevents a grant of probate being issued.
Challenging the validity of a will can be very difficult due to the high level of evidence required to be successful. If there is insufficient evidence regarding the validity of the will, filing a probate caveat carries the risk that the court may set aside the caveat, allowing the proposed executor to obtain a grant of probate. In the event that the caveat is set aside and challenging the validity of the will is unsuccessful, the court may order that the costs of the proceedings to determine the validity of the will have to be paid by the person who challenged the will.
Our team practices exclusively in Wills and Estates Law and are here to guide you through the process to achieve the best possible outcome. If you have concerns about how long you have to challenge a particular will, we recommend that you seek advice as soon as possible and we encourage you to call us on 1300 168 676 for an obligation free initial case assessment.
In Queensland, a person is only entitled to challenge a Will if they have an 'interest' in the estate. The most common examples of when a person might have an interest in an estate is when:
A person is not entitled to challenge a Will in Queensland if they do not have an interest in the deceased person’s estate.
In Queensland, the main reasons for challenging a Will are as follows:
One of the most common grounds for challenging a will is a belief that the deceased person did not have the mental capacity to make a will at the time that their will was made. This is called "testamentary capacity".
A person has capacity to make a will if:
If a will-maker fails on any of the three limbs of the above test, they may not have testamentary capacity to make a will.
In order to successfully challenge a will on grounds of lack of capacity, the claimant will need to show the court that there is doubt that the deceased person did not have testamentary capacity. The executor of the dubious will must then provide evidence to prove that the deceased person did have testamentary capacity at the time that the will was made. A person who wishes to challenge a will on grounds of capacity should gather evidence to support their claim. Evidence that is commonly used in capacity disputes includes:
If you require advice about challenging a will on grounds of lack of testamentary capacity, we recommend you call us for a free case assessment on 1300 168 676.
If a person is concerned that a deceased person’s last will was made in suspicious circumstances, they can challenge the will on this basis.
The term "suspicious circumstances" has not been exhaustively defined, however based upon relevant cases, the existence of any of the following facts may justify challenging a will on the basis of "suspicious circumstances":
Usually if a will in Queensland complies with the applicable statutory requirements, it is presumed that the will was made by a will maker who had testamentary capacity and who knew and approved of the contents of the will. If a person successfully challenges a will by raising suspicious circumstances, the executor of the will (or other person applying for a grant of representation) is put on notice that they must prove that the will is regular and that the will maker knew and approved of the contents of the will. Sometimes, depending upon the type of suspicious circumstances raised, the executor may also be required to produce evidence in in support of the will maker’s testamentary capacity.
If the executor of the will can prove that the will maker was competent and knew and approved of the contents of the will, then the Court will make a grant of representation in relation to the will. However, if the executor of the will is unable to provide proof that these requirements are satisfied, the Court will not make a grant of representation in relation to the will and the person who challenged the will shall be successful.
If you require advice about challenging a will on grounds of suspicious circumstances, we recommend you call us for a free case assessment on 1300 168 676
The creation of a will by way of undue influence is another basis for challenging a will. Undue influence is where a pressure or coercion is applied to a will-maker which results in the will-maker leaving a will that does not reflect their wishes. If a person wishes to challenge a will on the basis that the deceased person was subjected to undue influence, they must be able to prove that the influence/coercion was so great that the resulting will is inconsistent with the intention of the willmaker.
Undue influence can invalidate all or part of the will of the deceased, depending on the circumstances. If only part of the will was procured by undue influence (for example, a specific gift of a cash sum to a person), but the rest of the will reflects the deceased person’s true wishes, only the problematic portions may be invalidated. It is often difficult for a claimant to produce direct evidence of an act of coercion of a deceased person in relation to their will. If the allegation of undue influence is based upon surrounding circumstances, the claimant will still need to show that the will-making intentions of the deceased person were overborne and that the will in question is a product of undue influence.
If you require advice about challenging a will on grounds of undue influence, we recommend you call us for a free case assessment on 1300 168 676.
Another basis for challenging a will is that is has been procured by fraud. Fraud may arise where a person has misled a will maker to make a will by making intentionally false statements or by suppressing relevant facts (or both). The conduct must be engaged in for the purpose of the person obtaining a benefit under the will or in order to prevent a worthy recipient (such as a dutiful spouse or child) from receiving a benefit under the will.
Two of the most common examples of fraud in relation to a will are:
If you require advice about challenging a will on grounds of fraud, we recommend you call us for a free case assessment on 1300 168 676.
If the death of the will maker was caused by the criminal conduct of a person who receives a benefit under the will, it may be possible to their entitlement to a share of the estate in reliance upon the forfeiture rule. The forfeiture rule is that where a person is responsible for the death of another person, they forfeit any right or property which they gain as a result of the death of the person for whose death they are responsible.
A conviction of murder or manslaughter in relation to the death of the deceased in Queensland is usually sufficient in order for the forfeiture rule to apply to the deceased person’s estate. In Queensland a conviction of manslaughter arising in circumstances of assisted suicide of the deceased person is also sufficient for the rule to apply.
In some circumstances it may be possible to successfully argue that the forfeiture rule should operate in relation to an estate where a person named in the will has not been not been convicted of a crime. This is because the standard of proof in civil cases (such will disputes) is different to the standard of proof in criminal cases.
The forfeiture rule can operate in relation to any right or property acquired as a result of the death of a person such as:
If you require advice about disputing a will, or any of the above transactions, due to operation of the forfeiture rule, we recommend you call us for a free case assessment on 1300 168 676.
The general rule about costs in any legal proceedings is that costs are in the discretion of the Court but usually "follow the event". This means that usually, a successful party will have their costs paid by the other party, but this is a matter for the discretion of the judge that decides the case.
In estate litigation in Queensland, including will challenges, the Court’s discretion is not limited, but the Court can specifically take the following factors into account when deciding how to award costs:
Even after the above factors are taken into account, costs are in the discretion of the court.
There are two exceptions to the general rule that costs follow the event which can apply in proceedings brought to challenge a will, namely:
If a Will is challenged without reasonable grounds it is likely that the usual rule will apply and costs will “follow the event”. This means the unsuccessful party could be ordered to pay the successful party’s costs. Because of this risk, it is important to get legal advice if you are considering challenging a Will.
If a caveat has been filed to prevent a Grant of Probate being made in an estate, a person intending to make an application for Probate may apply for the caveat to be set aside. The Court may set aside a caveat only if the Court considers that the evidence fails to:
If the Court is not prepared to set the caveat aside, it may give a directions for the challenge to the Will to be decided speedily. For example the Court can direct that the caveator must start proceedings within a specified time, and, if the caveator fails to comply with this direction, the caveat stops having effect. This would mean that the application for Probate could proceed normally.
An executor has a number of obligations in their handling of an estate, including;
Where there is concern that an executor is failing to carry out their duties or acting against the interests of the estate you can challenge an executor of a will by making an application to the court to have the executor removed. It may be that the executor is inactive and not carrying out their duties at all or it may be that they are preferring their own interests over the interests of the estate and other beneficiaries.
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.
Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505