Grounds for Challenging a Will (Qld)

In Queensland, a person who has an interest in a deceased estate can challenge the will. When a person challenges a will they are arguing that the will is not legally valid and that therefore, no Grant of Probate should be issued. This page sets out the main grounds for challenging a will in Queensland.

Lack of Testamentary Capacity

One of the most common grounds for challenging a will is on the basis that the deceased person did not have the mental capacity to make a will at the time that the will was made. The mental capacity to make a will is called testamentary capacity.

A person has testamentary capacity 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 the ground of lack of capacity, the claimant will need to show the court that there is doubt that the deceased person had testamentary capacity. In defending this claim, the executor of the dubious will must adduce evidence 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 the ground that the deceased lacked capacity should gather evidence to support their claim. Evidence that is commonly used in such cases includes:

1. File notes, statements and other records from the solicitor who drafted the will (if the will was prepared by a solicitor);
2. Medical evidence;
3. 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 the ground of lack of testamentary capacity, we recommend you call us for a free case assessment on 1300 038 223.

There are Suspicious Circumstances Surrounding the Preparation of the Will

If a person is concerned that a deceased person’s last will was made under suspicious circumstances, this is also a ground for challenging a will.

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 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 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 038 223.

There was undue influence

The creation of a will by way of undue influence is another ground for challenging a will. Undue influence is where a pressure or coercion is applied to a will-maker resulting in the will-maker leaving a will that does not reflect their wishes. If a person challenges a will on the basis that the deceased person was subjected to undue influence, they must seek to prove that the influence/coercion was so great that the resulting will is inconsistent with the intention of the will-maker.

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.

There was Fraud

Another ground for challenging a will is that the will was procured by fraud. The fraud may have consisted of a person misleading a will-maker to make a will by making intentionally false statements or by suppressing relevant facts (or both).

The conduct must have been 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 would not have made.

Operation of the Forfeiture Rule

If the death of the will-maker was caused by the criminal conduct of a person who is entitled to receive a benefit under the will, their entitlement to a share of the estate may be forfeited.

Under the forfeiture rule, a person who is responsible for the death of another person forfeits any right or property which they gain as a result.

A conviction for murder or manslaughter is usually sufficient for the forfeiture rule to apply to the deceased person’s estate. In Queensland a conviction for 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 even 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 as 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 including:

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.

Who Can Challenge a Will?

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.

If you require legal 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 038 223.