Contesting a Will in Queensland


Contesting a will is different from challenging a will. When a person challenges a will, they are questioning the validity of the document. When a person contests a will, they are arguing that the distribution of assets among beneficiaries that is set out in the will in unfair and that the court should intervene. In Queensland you can contest a will if you are an eligible person and you believe that you have been left without adequate provision for your proper maintenance and support..

What does the court consider?

The court may consider a range of factors when determining a contested will matter. These include:

  1. The financial position of the beneficiaries (and any other claimants);
  2. The nature and extent of the claimant’s relationship with the deceased;
  3. Any support provided to them by the deceased during his/her life;
  4. Any statements or promises made by the deceased to them about how he/she would divide their estate;
  5. The standard of living to which the claimant is accustomed;
  6. Any contribution they made to the size of the deceased’s estate;
  7. Any other matter which the court considers relevant.

It is very difficult to define “adequate provision” and what this amounts to varies from case to case.

How to contest a will

A person contests a will by making a family provision claim. A Family Provision claim can only be made in Queensland if either:

  1. There is real property (i.e. land) owned by the deceased situated in Queensland; and/or
  2. The deceased was living in Queensland at the date of his or her death.

If you are thinking of making a Family Provision Claim, you should act immediately. It is possible that estate assets might be sold or distributed and any monies may be spent. If you delay in making a claim, there may be no assets or funds to claim against. There are also strict time limits which apply to Family Provision applications in Queensland.

Eligible applicants

Under section 41 of the Succession Act, in order to make a claim a person must fall within one or more of the following categories of eligible applicants:

  1. The deceased’s spouse;
  2. The deceased’s child;
  3. The deceased’s dependant.

The terms “spouse”, “child” and “dependant” are defined in the Succession Act. A summary of the types of persons who might fall within each category is set out below.

Spouse

The following persons may be a “spouse” and therefore eligible to contest a Will in QLD:

  1. The deceased’s husband or wife;
  2. The deceased’s de facto partner;
  3. The deceased’s registered partner (pursuant to the Relationships Act 2011); and
  4. The deceased’s former husband, wife or registered partner.

Child

The following persons may be a “child” and therefore eligible to contest a will in Queensland:

  1. The deceased’s natural (biological) child;
  2. The deceased’s unborn child;
  3. The deceased’s lawfully adopted child; and
  4. The deceased’s stepchild.

Dependant

The following persons may be a “dependant” and therefore eligible to contest a will in Queensland:

  1. The deceased’s parent;
  2. A parent of a child of the deceased (provided that the deceased’s child is under eighteen);
  3. Any person under the age of eighteen who was being maintained by the deceased at the date of death, regardless of their relationship with the deceased (this could include, for example, the deceased’s grandchild or step-grandchild, former step-child, brother or sister, niece or nephew or foster child.

In order for any person to be a “dependant”, they must have been “wholly or substantially maintained” by the deceased person at the date of the deceased person’s death.

Time limits

In Queensland there are time limits that apply to contesting a will.

If a person wants to contest a will in Queensland, first they must give notice to the executor that they intend to contest the will of the deceased. This notice should be in writing and must be given within six months of the date of death. If the executor does not receive notice of a potential claim, after six months has passed they can distribute the estate and there may be no estate assets left to claim against.

If a person wants to contest a will in Queensland and does not give notice of their intention to claim until after six months from the date of the deceased’s death, they can still give their notice outside this time. If the estate has not been distributed at the date when the notice is received, the executor should not distribute the estate until after the limitation date.

The second time limit which applies to family provision applications in Queensland requires a claimant to file their application in the court within nine months of the date of the deceased’s death.

In certain cases, “out of time” applications can be made. However this is at the discretion of the court. In deciding whether to allow an “out of time” application, the court will consider a range of factors, including:

  1. The length of the delay;
  2. The reason for the claimant’s delay;
  3. Whether the estate has been distributed.

How do I get a copy of a will?

When a person passes away, it is common for their relatives and loved ones to be unaware of the terms of their will. To obtain a copy of a deceased person’s will, you should contact the executor or the solicitor acting for the estate. The executor is the person responsible for administering the deceased’s estate.

In Queensland, you are entitled to inspect and obtain a certified copy of a deceased person’s will if you are:

  1. Mentioned in the will (even if you are not mentioned by name);
  2. Mentioned in any earlier will as a beneficiary (even if you are not mentioned by name);
  3. A spouse, parent or child of the deceased person;
  4. A person who would be entitled to a share of the estate if the deceased died intestate (without a will);
  5. A parent or guardian of any minor falling within categories 1 and 4 above;
  6. A creditor or other person with a legal claim against the estate;
  7. A person who may contest the will by making a family provision application.

If you fit into one or more of the above categories, a person in possession or control of the will or a copy of the will (if the original has been lost, stolen or destroyed) must allow you to inspect the will or copy and give you a certified copy upon request. This is required under section 33Z of the Succession Act 1981.

If required by the court, a person who has possession or control of the will or a copy of the will must produce it to the court.  In the event the deceased left no will, an application for Letters of Administration might be required.

Who pays the fees?

In Queensland, costs are in the discretion of the court, but generally they follow the event. This means that the successful party in legal proceedings will usually have some of their legal costs paid by the other party. Specifically, in relation to proceedings to contest a will, the court may have regard to whether a party has failed to comply with the rules or a practice direction of the court, whether irrelevant material was put before the court, the size of the estate, any offer of settlement made by the parties and any other matter that the court considers relevant.

If the Judge makes an order for provision for the applicant, the estate will usually pay the applicant’s standard costs.

If the applicant is unsuccessful and the Judge makes no order for provision for the applicant, the Judge may order the applicant to pay the executor’s costs of defending the proceedings. This is why we recommend that you seek advice from a lawyer who specialises in this area of law. We assess your case and advise you on the likely outcomes. Armstrong Legal offers a variety of cost agreements in these cases including “No Win No Fee” agreements.

 

Intestacy

When a person dies without a will, they are said to have died Intestate.

In circumstances where a person does not have a will or the will cannot be found, an administrator is appointed by the court to distribute the estate of the deceased according to the intestacy rules. When an administrator is appointed by the court, it is called a grant of Letters of Administration.

It is these Letters of Administration that enable the administrator to act as the representative of the estate. Once appointed, the role of an administrator is similar to the role of an executor (where a person died with a Will). Once Letters of Administration is granted, the administrator gathers in the estate, pays out any outstanding liabilities and distributes the estate in accordance with the intestacy rules. A summary of the intestacy rules is set out below.

Where the deceased has a spouse and children

The spouse is entitled to $150,000.00 and the “household chattels” plus:

    • half of the remainder of the estate (if there is only one surviving child); or
    • one-third of the remainder of the estate (if there is more than one surviving child.

If there is more than one person who fits the definition of “spouse” then the spouses can agree about how the estate is split between them or the court can make an order. If neither of these steps occurs, the executor may distribute the entitlement between the spouses evenly.

The children of the deceased are entitled to the remainder of the estate.

Where the deceased has a spouse but no children

The spouse is entitled to the whole estate. If there is more than one person who fits the definition of “spouse” then the spouses can agree about how the estate is split between them or the court can make an order. If neither of these steps occurs, the executor may distribute the entitlement between the spouses evenly.

Where the deceased was survived by issue but no spouse

The deceased’s issue are entitled to the whole estate. “Issue” usually refers to lineal descendants of the deceased such as children, or grandchildren (where their parent, the deceased’s child, is deceased).

If there are no issue, the deceased’s parents are entitled to the whole estate.

If there are no issue or parents who survive the deceased, the deceased’s next of kin is entitled to the estate in the following order:

    • Brothers and sisters (including the children of a brother or sister who did not survive the deceased i.e. the deceased’s nieces and nephews);
    • Grandparents;
    • Uncles and aunts (including the children of an uncle or aunt who did not survive the deceased i.e. the deceased’s cousins).

If there is no next of kin who survive the deceased, the estate is said to be bona vacantia and the Crown (i.e. the government) is entitled to the whole estate.

What happens if the will is not valid?

When there are questions as to the validity of a will, an eligible person may challenge the will. A person may challenge a will if they think:

  1. That the deceased did not have the mental capacity to make a will;
  2. That the will was forged;
  3. That the deceased was unduly influenced in making the will; or
  4. That there was fraud involved.

What does the court consider when deciding a claim?

In Queensland, a court may take various matters into consideration in determining whether to make a family provision order. Given the number of factors involved, it is very important to seek legal advice at an early point in the proceedings.

The Succession Act does not provide a list of factors for the court to consider when a person contests a will. However case law suggests that the following factors are usually taken into account:

  1. The applicant’s financial position,
  2. Whether any other person is liable to support the applicant;
  3. Whether the applicant is bound to support any other persons;
  4. The applicant’s health;
  5. The deceased’s influence on the applicant’s lifestyle;
  6. The age of the applicant;
  7. The size and nature of the deceased’s estate;
  8. The strength of any competing claims to the deceased’s estate;
  9. The relationship between the deceased and the applicant;
  10. The relationship between the deceased and other persons who might have a claim to a share of the deceased’s estate;
  11. Any contribution made by the applicant or a beneficiary to the build-up of the deceased’s estate;
  12. Any conduct on the part of the applicant which might disentitle them to an order for provision; and
  13. Any other matter which the court considers relevant.

Can grandchildren contest a will?

In Queensland, grandchildren of the deceased are not usually eligible to contest a will. The only people who are eligible to contest a will in Queensland are a “spouse”, “child” or “dependant” of the deceased person.

A person who is a grandchild of the deceased may be eligible to contest a will if they fall within the category of “dependant” of the deceased. The Succession Act provides that the following people may be a dependant of the deceased:

  1. a parent of that deceased person; or
  2. the parent of a surviving child under the age of 18 years of that deceased person; or
  3. a person under the age of 18 years (usually an eligible grandchild will fit into this sub-category).

In addition to falling into one of the above three categories, in order to qualify as a dependant of the deceased, a grandchild must have been “wholly or substantially maintained or supported” (otherwise than in exchange for money) by the deceased person at the time of the person’s death.

In rare circumstances, a biological grandchild of a deceased person may be eligible to contest a will as a “child” of the deceased. This is only possible if the grandchild was lawfully adopted by the deceased and accordingly became their adopted son or daughter.

If you are a grandchild of the deceased and believe that you are eligible to contest the deceased’s will, please call us on 1300 038 223 for a free case assessment.

Can a niece or nephew contest a will in Queensland?

In Queensland, nieces and nephews of the deceased are not usually eligible to contest a will. The only people who are eligible to contest a will in Queensland are a “spouse”, “child” or “dependant” of the deceased person.

A person who is a niece or nephew of the deceased may be eligible to contest a will if they fall within the category of “dependant” of the deceased. The Succession Act provides that the following people may be a dependant of the deceased:

  1. a parent of that deceased person; or
  2. the parent of a surviving child under the age of 18 years of that deceased person; or
  3. a person under the age of 18 years (usually an eligible grandchild will fit into this sub-category).

In addition to falling into one of the above three categories, in order to qualify as a dependant of the deceased, a niece or nephew must have been “wholly or substantially maintained or supported” (otherwise than in exchange for money) by the deceased person at the time of the person’s death.

In rare circumstances, a biological niece or nephew of a deceased person may be eligible to contest a will as a “child” of the deceased. This is only possible if the niece or nephew was lawfully adopted by the deceased and accordingly became their adopted son or daughter.

If you require legal assistance, advice or representation in a contested wills matter or in any other legal matter, please contact Armstrong Legal. 

WHERE TO NEXT?

Have you been left out of a Will or treated unfairly? 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.

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