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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.

Contesting A Will From Outside Queensland


A claimant against a Queensland deceased estate can contest a will from anywhere in Australia and even from overseas. There is no statutory regulation that requires a claimant to reside in the jurisdiction, or even be present in the state unless the claim proceeds to trial. If the matter does go to trial it is advisable for anyone contesting a will from outside Queensland to engage the services of a solicitor who is experienced in Queensland estate law. This article outlines the processes involved in estate litigation and explores some of the practicalities involved in filing a claim from interstate or overseas.

Contesting A Will from outside Queensland: Family Provision Claims

The Succession Act 1981 allows certain people to file a Family Provision Application to contest the provisions of a will if the testator did not make appropriate provision for the claimant’s maintenance and support. The only individuals eligible to make such a claim in the Queensland court are the testator’s de facto or registered partner, spouse, stepchild, biological and adopted child, and certain other people who are dependents of the deceased.

Before making a Family Provision Application to the Supreme Court, a person must first notify the executor of the estate that they plan to contest the will. The executor must be informed in the six months following the testator’s death, otherwise, the executor is free after the limitation date to distribute the bequests according to the will. This notice to the executor must be in writing so it is possible for a claimant to mail the document from elsewhere in Australia or overseas. It is advisable for the claimant to send the notice via registered mail to retain evidence that they abided by this statutory requirement.

Ideally, this notice will open negotiations between the executor and the claimant, and a settlement will be reached without a court hearing. These negotiations can be conducted by telephone or by mail, but it is advisable (although not mandatory) for the claimant to use a Queensland-based solicitor to act as an intermediary in the discussions.

In the event that the negotiations between the executor and the claimant are unsuccessful, the claimant can proceed with filing a Family Provision Claim. A solicitor can file the necessary documentation with the court, but the claimant will need to arrange to have their attached affidavit witnessed by an approved person in their own location and sent to the solicitors. This affidavit must conform with the appropriate Supreme Court Practice Direction.

Mediation

When the court reviews the filing, it will set directions that must be followed before the matter will be set for trial. The first direction the court will make is that the parties must undergo mediation in the hope that the dispute over the deceased estate can be settled before proceeding to a court setting. A claimant can attend mediation via teleconference, but it may be worthwhile to travel to Queensland to be present for the mediation conference. Alternatively, the claimant’s solicitor can attend mediation on their client’s behalf if they have their client’s full authority to settle the matter. Most Family Provision Applications do settle at mediation, because of the expense of proceeding to trial, and because the court looks unkindly on claimants and executors who refuse to consider reasonable offers proffered during mediation. The court can issue binding legal orders based on agreements reached in mediation.

Court Proceedings

Only a small number of claims proceed to a trial where the parties present their opposing cases before the court. At the trial, the parties may need to be present to provide testimony and be available for cross-examination. This requirement should not discourage a claimant from contesting a will from elsewhere in Australia or overseas, as it is very likely that a negotiated outcome will be reached before a claimant is required to be physically present in court.

Contesting A Will From Outside Queensland: Time Limits

It is essential that someone living outside Queensland be aware of the time limits involved in contesting a will here, as the deadlines vary across jurisdictions. In Queensland, a claimant has nine months after the date of death to file a Family Provision Application. Someone who lives interstate or overseas may not be aware that the testator had passed away until after the deadline to contest the will. If the executor did not inform the claimant and so they were unaware of the testator’s death until later then the court may be persuaded to grant an out of time application.

Contesting a will from elsewhere is entirely possible, especially if the claimant retains the services of an experienced estate solicitor. Our contested wills team is highly experienced in estate and probate law and can assist you with any of your legal needs. Please make a call to our team on 1300 038 223 without delay or arrange an appointment to discuss how we can facilitate your Family Provision Claim.

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