Can Grandchildren Contest A Will? (Qld)
In Queensland, only particular categories of people can contest a will through a legal procedure known as a Family Provision Application. Although there is provision to contest a will in every state, the eligibility rules differ across jurisdictions and are not always easily understandable. For example, grandchildren are not automatically eligible to contest a will under the Succession Act 1981, but they may still be able to make a claim under certain circumstances. This article outlines how grandchildren can contest a will in Queensland.
What Is A Family Provision Application?
An eligible person can file a Family Provision Application if they feel that they were unfairly provided for in a will, or received an insufficient share for their needs. The application is filed with the Probate Registry of the Supreme Court and assessed against statutory measures and against the competing claims of other beneficiaries.
Who Can Contest A Will In Queensland?
Firstly, it must be noted that an application can only be made to the Queensland Supreme Court when it relates to the deceased estate of a Queensland resident or someone who owned real property in the state. The list of eligible people who can contest a will in Queensland is limited to the deceased’s de facto or marital spouse, child or dependent.
Can Grandchildren Contest A Will?
Occasionally, a grandchild can contest a will under the child’s right to claim. This applies in cases where the parents of the grandchild passed away or were unable to take on parenting duties, and the deceased legally adopted their grandchild to become their son or daughter. An adopted child has identical rights under the Adoption Act 2009 as a biological child of the deceased.
Contesting A Will As A Dependent
The other way that grandchildren can contest a will is as a dependent of the deceased. There are a few recognised categories of dependent:
- A parent of the deceased;
- A parent of a minor child shared with the deceased; and
- A child under eighteen.
A grandchild might fall into this last category of a minor child. However, in order for the grandchild to qualify, the deceased must also have been wholly or substantially maintaining or supporting the grandchild at their time of death. The exact level of support is not legislated, but if the deceased made the occasional gift to a grandchild, that is likely to be insufficient to indicate financial dependence. On the other hand, if the grandchild lived in the deceased’s home rent-free or the grandchild’s basic needs could not be met without the help of the deceased, then that would be persuasive evidence of dependence. The court will consider the specific circumstances of the claimant’s case before reaching a conclusion.
Time Limits For Grandchildren To Contest A Will
There are two different time limits that apply to making a claim against an estate in Queensland. A grandchild has to notify the executor of the estate in writing of their intent to contest the will within six months of the deceased’s death. This will forestall the executor from distributing the estate according to the directions in the will. If a notice is served on the executor after the six months but before the estate has been distributed, the executor is obliged to wait until after the second limitation date.
The second time limit applies to a grandchild making a Family Provision Application to the Supreme Court. A claimant must file the application within nine months of the testator’s death. The court may still hear an application lodged after this time limit if the claimant can give a persuasive excuse for the delay. The decision on whether to hear an “out of time” application depends on how late the application is, the reason for the delay, and whether the assets of the estate have already been distributed to the designated beneficiaries.
Just because a grandchild qualifies to contest a will in Queensland, it does not necessarily mean that the claim will be successful. The court will weigh the grandchild’s claim against the claims of every other claimant or existing beneficiary. The court will reflect on a range of factors, including:
- Any promises that the testator made to the grandchild about making provisions for them from their estate
- The financial circumstances of the claimant and all other beneficiaries
- The claimant’s accustomed standard of living
- The nature of the relationship between the deceased and the grandchild
- Any support provided by either party to the other
- Any contribution that the claimant made to the deceased estate
- Any other factors that are deemed relevant
As this article has briefly summarised, grandchildren can contest a will in Queensland under certain conditions and within specific time frames. The experienced solicitors on the contested wills team at Armstrong Legal can advise you on whether you are likely to be eligible to make a Family Provision Application and assist you with any aspect of the process. Please contact or call our team on 1300 038 223 to discuss the particulars of your case.