Can a Beneficiary Contest a Will? (Qld)
In Queensland, an eligible beneficiary can contest a will on the basis that they have not received adequate provision, in a legal action called a Family Provision Claim. This article reviews the eligibility criteria for Family Provision Claims in Queensland, the applicable time limits, and how the court evaluates the merits of a Family Provision Claim.
Who is Eligible to Contest a Will in Queensland?
A person can make a Family Provision Claim in Queensland if any part of the deceased estate is real property in Queensland, or the deceased was living in the state at the time of death.
A beneficiary of an estate in Queensland can only contest the estate if he or she is also an “eligible” applicant. Under section 41 of the Succession Act 1981, only the deceased’s spouse, child, or dependent is an eligible applicant. For the purposes of contesting an estate, a spouse is defined under the Act to include a registered partner, a de facto partner, and even includes a former spouse or de facto of the deceased. A child includes an unborn child, an adopted child, and a stepchild.
The definition of spouse and child is relatively straightforward, but the final category of “dependant” is more complex. In order for a person to qualify as a dependant, they must have been “wholly or substantially maintained” by the testator at the time of the deceased person’s death. A dependant can include a parent of the deceased, a parent of a minor child of the deceased, and anyone under the age of eighteen who was wholly or substantially maintained by the deceased.
What Criteria Determine Adequate Provision?
A Queensland court may consider anything that it deems to be relevant in determining whether a beneficiary has received adequate provision under a will. The Succession Act 1981 does not legislate a list of factors for Queensland courts to consider when a beneficiary contests a will, but there are factors that are typically taken into account.
The chief consideration is typically the financial position of the beneficiary and the economic circumstances of anyone else with a viable claim on the estate. The court will also take into account the support that the deceased had previously provided to the beneficiary, and broadly the relationship between the beneficiary and the deceased. The court is also likely to look at the beneficiary’s age, health and usual standard of living, and any promises that were made by the deceased to the beneficiary. In addition, if the beneficiary made contributions to the deceased’s estate (such as by working in a family business) the court will consider whether this contribution entitles the beneficiary to a larger share of the deceased estate.
Time Limits for a Beneficiary to Contest a Will in Queensland
Time limits do apply to the lodgement of a Family Provision Claim in Queensland. The first step in contesting a will is to notify the executor of the estate. The notice should be in writing and sent sometime in the six months following the death of the testator.
It is technically possible to lodge an intention to claim after the six-month period, but at that stage, it is assumed that there will be no further contests of the will, and the executor will have started distributing the estate. For this reason, it is quite likely that a claim notified after six months may have an unsatisfactory outcome simply because the assets of the estate have already been distributed.
In addition to giving notice of an intention to claim at six months, the beneficiary who wishes to contest the will must also file an application with the court within nine months of the deceased’s death. There are circumstances when the court will permit a late filing of an application. In determining whether a late application will be allowed, the court will consider when the claim was made in relation to the date of the testator’s death, the reason that the claimant did not lodge the application within the statutory period, and whether or not the executor has already distributed the estate to the beneficiaries mentioned in the will.
Who Pays When a Beneficiary Contests a Will in Queensland?
In Queensland, the court decides whether the beneficiary pays the costs associated with contesting a will. If the beneficiary is successful in their claim, then the court will usually order the estate to cover the applicant’s costs, but if no further provision is ordered, then the judge may order the applicant to reimburse the estate for the costs of defending the action.
If you are the beneficiary of a will in Queensland and are considering contesting your provision, or if you have made a will and are concerned that your wishes may be contested, please call Armstrong Legal on 1300 038 223 or email us to make an appointment.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.