Challenging a Will in QLD
In Queensland, if a person believes that a deceased person’s will is 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. This process is governed by the Succession Act 1981 and can be initiated by anyone who has a legal interest in the estate of the deceased person. This page deals with the process of initiating a challenge to a will in Queensland.
Challenging a will or contesting a will?
Challenging a will is different from contesting a will.
When a person challenges a will, they are arguing that the will is invalid. This may be for a range of reasons, including that the testator lacked testamentary capacity when the will was signed or that the will is a forgery.
When a person contests a will, they are arguing that the terms of the will are unfair because the will does not make adequate provision for someone close to the testator. The person contesting the will is asking the court to intervene so that the estate gets distributed fairly.
Challenging the validity of a will
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, a person must be mentioned in a will of the deceased (either their last will or an earlier will) or be entitled to a share of the estate if the deceased person died with no valid will (intestate).
There are many reasons for challenging the validity of a will, including:
- The will fails to meet the formal requirements for execution of a valid will;
- The will-maker lacked capacity;
- The will-maker did not approve the contents of the will;
- The will was made under suspicious circumstances;
- There was undue influence exerted on the will-maker; and
- There was fraud or forgery.
How to Challenge a Will in Queensland
A will can be challenged either before or after a grant of probate is made.
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 probate caveat in the Registry of the Supreme Court. The legal term for a person who has filed a caveat is a “caveator”. Once a probate caveat has been filed, the court will not make a Grant of Probate to any person without giving 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 notice 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 the 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 person can apply to the court for an order requiring the executor to:
- Bring the Grant of Probate back to the court registry; and
- 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.
In the initial stages of administering an estate after a death, 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 are considering challenging the validity of a will, you may want to consider filing a probate caveat in the court registry. However, a challenge to the validity of a will requires a lot of evidence in order to be successful. In the event that the caveat is set aside, and the challenge is unsuccessful, the court may order you to pay the costs of defending the proceedings.
A probate caveat should not be lodged by a person who intends to contest the provisions of a will or by a creditor of the estate. If a probate caveat is filed without a proper legal cause, the caveator may be ordered to pay costs.
Our team practices exclusively in Wills and Estates Law and is here to guide you through the process of challenging a will to achieve the best possible outcome. If you have concerns about how much time you have to challenge a will, or about what steps you need to take to prepare to do so, we recommend that you contact our team on 1300 038 223 for an obligation-free assessment.