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Can A Friend Contest A Will? (Qld)

In Queensland, only a few people are eligible under the Succession Act 1981 to dispute the provisions of a testator’s will. The deceased’s spouse and children have the right to contest the will as the closest relatives, as does a dependent under some circumstances. A friend is not an eligible claimant unless they fit into one of the other categories of eligible claimants. This article explains the very limited allowance for a friend to contest a will in Queensland, and explores some alternatives to ensure that a friend receives appropriate provision from a deceased estate.

What Is A Family Provision Application?

An eligible claimant makes a Family Provision Application (FPA) when a testator’s will is not fair and fails to make appropriate provision for the claimant. A claimant who has a right to inherit from the deceased and a need for financial support can make an application to the Supreme Court. This includes applicants who received an insufficient bequest from the deceased and those who were entirely unnamed in the will.

The first stage of the FPA process is for the claimant to approach the executor of the estate with written notice that they intend to contest the will. The hope is that the claimant and the executor can reach an agreement before it is necessary to engage in time-consuming and expensive litigation. The executor is obligated to consider any claim against the estate and make sound judgments in line with what is just and appropriate, and to prevent financial drain on the estate through unnecessary legal action.

Who Can Contest A Will In QLD?

As the name suggests, a Family Provision Application is designed to provide family members of the deceased with an opportunity to contest a will. Section 41 of the Succession Act 1981 restricts the list of eligible claimants to the:

  • Deceased’s spouse (specifically a husband or wife or de facto partner, a registered partner pursuant to the Relationships Act 2011 and a former spouse);
  • Deceased’s children (specifically a stepchild, adopted child, biological child and unborn child); and
  • Deceased’s dependent (specifically a parent of the deceased, or a parent of a minor child of the deceased, or any other minor, if the deceased was wholly or substantially maintaining them before passing away).

Can A Friend Contest A Will?

The claimant should check that they do not fall into one of the above eligible categories. For instance, someone who is a current friend of the deceased might also be defined as a de facto partner of the testator, or as the parent of a child of the deceased. A friend can also contest the will if they are a minor and reliant on the deceased for maintenance. This type of dependence must be substantiated to the court through proof that the testator made regular or substantial financial contributions to the claimant.

Alternatives To Ensure A Friend Receives A Bequest

Queensland law largely prohibits a friend from contesting the provisions of a will, but it does not prevent the testator from making provision for a friend in the first place. A testator can make a gift of property or cash to a friend before their death or leave the friend a bequest in their will.

It should be noted that if a friend receives a bequest in a will, an eligible party with more claim to the estate can contest this provision of the will. The court will preference the claim of an eligible family member who received inadequate provision over the rights of a friend to inherit. The court is unlikely to question a small gift to a friend, but it may order a redistribution of the estate if the friend is a major beneficiary and the will makes inadequate provision for close family members in financial need.

Time Limits For A Friend To Contest A Will

A friend who can meet the eligibility requirements needs to take careful note of the relevant time limits for contesting a will in Queensland. Notice must be given to the executor before six months have elapsed from the date of death, otherwise, the executor is within their rights to distribute the assets of the estate to the beneficiaries. An FPA must be filed with the court in the nine months after the testator’s death. The court may hear a late application if there are reasonable grounds to grant an extension. However, as the claim of a friend has less priority than a next of kin, it is unlikely that the court would find sufficient justification for a late application. As such, it is essential that a friend consult a solicitor without delay if they intend to file an application.

If your friend has passed away and you feel that you are entitled to provision from their estate, then the experienced contested wills team at Armstrong Legal can advise you on the best approach given your particular circumstances. For any legal assistance, please call 1300 038 223 or make an appointment to discuss your case.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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