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Challenging 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 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.


Challenging the validity of a Will

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:

  • The will failing to meet the formal requirements for execution of a valid will;
  • Lack of capacity on behalf of the will maker;
  • The will maker not having knowledge and giving approval of the contents of the will;
  • Suspicious circumstances;
  • Undue influence; and
  • Alleged fraud or forgery.

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.

How to challenge a will in QLD?

Before a Grant of Probate is made

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.

After a Grant of Probate is made

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:

  1. Bring the Grant of Probate back to the Court registry; and
  2. Apply for a Grant of Probate in "solemn form".

"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.

How long can a will be challenged? (Time Limits)

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.

Probate caveat

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.

Who can Challenge a Will in QLD?

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:

  1. They are named as a beneficiary or executor of the deceased person’s last Will;
  2. They are named as a beneficiary or executor of an earlier Will of the deceased person; or
  3. They would be a recipient or all or part of the deceased person’s estate if the deceased person died without a valid Will.

A person is not entitled to challenge a Will in Queensland if they do not have an interest in the deceased person’s estate.

Grounds for Challenging a Will

In Queensland, the main reasons for challenging a Will are as follows:

The will maker lacked testamentary capacity;

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:

  1. The person understands that they are making a will and understands what it means to make a will;
  2. The person is aware of the extent of the assets which they are disposing of in their proposed will; and
  3. The person is able to consider the claims which other persons may have to their personal effects.

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:

  1. File notes, statements and other records from the solicitor who drafted the will (if the will was prepared by a solicitor);
  2. Statements from the witnesses to the deceased person executing the will;
  3. Medical evidence;
  4. Anecdotal evidence from person who observed the conduct and state of health of the deceased person around the time that the will was made.

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.

There are suspicious circumstances surrounding the preparation of the will

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":

  • The person who prepared the will, or participated in preparation of the will, receives a benefit under the will or is a close relative of a person who receives a benefit under the will;
  • The will is of questionable origin;
  • The will maker was frail, blind or illiterate at the time that the will was executed;
  • The will maker had impaired capacity;
  • The will maker has executed the will in an uncharacteristic manner; or
  • There has been a substantial change in the disposition of the will maker’s estate.

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

Undue influence;

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.

Fraud;

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:

  • Where the will maker has been persuaded to sign a document which they do not believe to be a will; and
  • Where the will maker has been misled in relation to a fact or facts which persuade the will maker to make a will which they otherwise may not have made.

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.

Operation of the forfeiture rule.

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:

  1. a gift under a will of the deceased person;
  2. an appointment as executor of the will of the deceased person;
  3. an entitlement to superannuation death benefits;
  4. an entitlement to the proceeds of life insurance; and/or
  5. the right to inherit property as a surviving joint owner pursuant to a joint tenancy.

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.

Cost of challenging a will / who pays to challenge a Will?

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:

  1. The value of the estate (or, if only part of the estate is disputed, the value of the disputed part of the estate);
  2. Whether costs have been increased because one or more of the parties did not comply with the rules of the Court or a practice direction;
  3. Whether the costs have been increased because one or more of the parties argued about unmeritorious issues, did not admit or concede facts or points where appropriate or focused unnecessarily on minor or peripheral issues; and
  4. An offer of settlement made by a party to the proceeding.

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:

  1. Where the deceased person caused the legal proceedings (for example through their statements or conduct, or by not having their affairs in order) – in this situation the unsuccessful party may have their costs paid out of the estate.
  2. Where the facts of the case are such that there are reasonable grounds for opposing the Will – in this situation the unsuccessful party may not be forced to bear an order that they pay the other party’s costs.

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.

Setting Aside a Caveat in QLD

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:

  • Show that the caveator has good prospects of establishing an interest in the estate; or
  • Raise doubt about whether a Grant of Probate may be made.

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.

Challenging an executor of a Will

An executor has a number of obligations in their handling of an estate, including;

  • Secure all assets of the estate against loss or damage;
  • Determine the nature of ownership of the assets of the deceased person, for example whether the assets were owned jointly or solely;
  • Identify and pay the liabilities of the estate; and
  • Distribute the estate in accordance with the will, or rules of intestacy where there is no will.

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.




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