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Can A Niece Or Nephew Contest A Will? (Qld)

In Queensland, only certain individuals can dispute the provisions of a will. Broadly speaking, this right is restricted to the deceased’s children, spouse and dependents. A niece or nephew, who is the child of the deceased’s sibling or sibling-in-law, is not automatically considered an eligible claimant. This legal circumscription does not account for circumstances where a niece or nephew has an especially close relationship with an aunt or uncle. The law does, however, make special provision to enable a niece or nephew to contest a will if they were also a dependent of the deceased. This article explores the eligibility criteria for a dependent Family Provision Application, with a particular focus on the rights of a niece or nephew to contest a will in Queensland.

What Is A Family Provision Application?

An eligible person can make a Family Provision Application against a deceased estate if the deceased lived in Queensland or owned property within the state. Such an application is based on the assumption that the claimant was entitled to financial support from the deceased and did not receive adequate provision in the will to reflect this entitlement. The claimant makes an application to the Supreme Court in the hope that the court will order a redistribution of the estate. This redistribution would make provision for the claimant if they were left out of the will, or if the claimant was an existing beneficiary, assign them a larger portion of the estate.

Who Can Contest A Will?

The Succession Act 1981 allows specific types of people to contest the provisions of a will in QLD. The deceased’s de facto or marital spouse can file a Family Provision Application and so can the deceased’s stepchild, or biological or legally adopted child. The final category of eligible applicant is anyone who was a “dependent” of the deceased before their death.

Can A Niece Or Nephew Qualify As A Dependent?

In Queensland, a dependent is typically a child under 18 years of age, the deceased’s elderly parent, or the parent of a deceased’s minor child. A niece or nephew may also qualify as a dependant if the deceased was “wholly or substantially maintaining or supporting” the claimant at the time of death. This would mean that the deceased provided sufficient economic support to the claimant to enable them to afford some or all of the necessities of life.

Alternative Ways A Niece Or Nephew Can Contest A Will

A niece or nephew may also be eligible to contest a will if the deceased legally adopted the claimant before their death. This can occur, for example, if the parents of the claimant died or were unable to take care of their child, and their sibling agreed to take responsibility for the child. If the claimant was formally adopted in accordance with the Adoption Act 2009, they have the same rights as any child of the deceased.

Time Limits To Contest A Will

A niece or nephew can only contest a will within certain time frames. In Queensland, a claimant must notify an executor of their intent to contest a will within six months of the testator’s death. This will prevent the executor from following through with the distribution of the estate to the beneficiaries after the statutory waiting period. If a notice is served after six months but the estate has not yet been distributed, the executor must suspend distribution to the beneficiaries.

The actual Family Provision Application must be filed before nine months has passed since the testator’s death. An out of time application can only be made with the permission of the Supreme Court. The court will make a judgment on whether to hear a late application based on the justification, the length of the delay, and whether the estate has already been distributed to the beneficiaries.

Additional Factors

Even if the niece or nephew meets the eligibility criteria that allow them to contest a will in Queensland, that does not mean that they will have a successful outcome to their claim. The Supreme Court will weigh the importance of making provision for the claimant against the impact that redistributing the estate will have on the other beneficiaries. It will also consider whether the applicant has already received an appropriate provision, the claimant’s financial circumstances, and any other factors that might constitute grounds for contesting a will.

A niece or nephew can contest a will in Queensland only under specific circumstances and within limited time frames. Armstrong Legal’s talented contested wills team can assist an extended family member to make an application, and provide advice on any area of probate, testamentary and succession law. Please call our offices on 1300 038 223 to discuss your needs, or contact us directly to 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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