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What Happens If a Will Is Not Valid? (Qld)

In Queensland, if someone has doubts about a testator’s will, they can start proceedings to challenge the will. The process for disputing the validity of a will is grounded in both state legislation and common law principles. A will is typically found to be invalid if there was undue influence or fraud in its creation, or the testator lacked the required testamentary capacity to write a will. This article looks at what happens if a will is not valid in Queensland.

When Is A Will Not Valid?

A will can be found invalid if:

  • The will does not adhere to formal requirements for the execution of a valid will;
  • The testator lacked testamentary capacity to make a will;
  • The testator has not given approval of the will contents;
  • The testator was improperly influenced to make the will;
  • The will was created through fraud or forgery; or
  • There are other suspicious circumstances.

Who Can Challenge A Will?

Only those with an “interest” in the deceased estate are eligible to challenge the will. This includes anyone named in a previous will or entitled to inherit under intestate succession law. As such, the deceased’s spouse and children can challenge the will, and so can the deceased’s parents, siblings and nephews and nieces.

Probate Caveat

When someone plans to challenge the validity of a will, they should file a probate caveat without delay with the Registry of the Supreme Court of Queensland. A probate caveat prevents the court from issuing a Grant of Probate to validate the will without notifying the caveator. The court will give notice to the probate applicant and the caveator, and the caveator must file a notice of support for their claim within eight days. If they do not comply within this time frame then the court will proceed without regard to the caveat. If the caveator does provide a supporting notice, then the court cannot issue a grant until the caveator withdraws the caveat or the court sets it aside.

The next step is for either the caveator or the probate applicant to commence proceedings to examine the validity of the will before a judge. A challenge to the validity of a will is only successful if there is a high level of evidence to support the claim. If the court finds there is insufficient evidence to invalidate the will, the court will set aside the caveat and grant probate. The court may also order that the caveator pay the costs of proceedings.

After Probate Is Granted

In will disputes, it is easier to challenge a will before the court grants probate, but it is possible to file a challenge after that point. After probate is granted, an executor is authorised to collect the assets of the estate and pay outstanding debts, but they should not have distributed the bequests in accordance with the will until after the limitation period, six months after the testator’s death. A person can apply for an order from the court compelling the executor to return the Grant of Probate to the court registry and apply for a new Grant of Probate in “solemn form”. The court will hold a solemn form hearing to consider the proffered evidence from both parties on the validity of the will.

What Happens If The Will Is Not Valid?

If the court finds that a will is not valid, then they will direct that the estate be distributed according to the most recent previous will. If the deceased dies without a valid will, they have died intestate. The estate will then be distributed in accordance with the Succession Act 1981.

In cases of intestacy, the estate will be distributed first to any next of kin of the deceased, typically their spouse (including a de facto partner) and offspring. When there is no living spouse then the estate is divided equally among the deceased’s children, and alternatively, if there are no children then a spouse inherits the whole residual estate. When the deceased left behind a spouse and one surviving child then the spouse inherits the first $150,000 of the residual estate and all household possessions, and shares the balance of the estate equally with the child. In the event that the deceased had both a spouse and several children, then the spouse receives their portion and one-third of the remaining estate, with the children inheriting the other two thirds.

Our contested wills team practices exclusively in wills and estate law and has ample experience in all testamentary and probate matters. We can advise you about what happens if the will is not valid, and help you with lodging a probate caveat and challenging a will before the court. Please contact us on 1300 038 223 to discuss your legal needs and make an appointment.

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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