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Disputing a Will in Queensland

When someone is disputing a will in Queensland, they are taking legal action to challenge or contest a will. A will is challenged when there is a question about the validity of the will itself, and it is contested when someone believes that the will was not fair. Disputing a will in Queensland can be expensive, time-consuming and stressful, but it is sometimes necessary to achieve a fair outcome for the dependents of the deceased. This article looks at the process of disputing a will in Queensland and outlines key issues that relate to this form of legal action.

Challenging a Will

Following a challenge, a will can be declared invalid if it was not written according to a set of legal formalities. The first requirement for a will to be valid is that it must be in writing. A will does not have to be written in formal language, but it does need to clearly express itself to be the final will of the “testator” (the person whose possessions are distributed in a will). Similarly, a will does not have to be an elaborate document printed on parchment, but it should be typed or neatly handwritten. The document should also be free from corrections such as erasures and notes in the margin.

It is essential that the testator signs the will, and this signature must be witnessed. It is not unusual for people to fail to have their signature appropriately witnessed, which results in their will being deemed invalid. The purpose of having the signature witnessed is to ensure that the testator signed the will voluntarily and was in sound mind when they made the will. The witnesses must see the testator sign the will, and sign themselves, in the presence of the testator and each other. It is also critical that the witnesses are independent and do not have a conflict of interest: as such, the witnesses to a will cannot themselves be beneficiaries under the will, and neither witness can be the spouse of the testator.

If any of these formalities are omitted, the validity of the will can be challenged in a Queensland court. It is important to note that even if a will does not comply with every formality, a court may still uphold the wishes expressed in the document.  A court will only overrule the wishes of the testator if it is determined that the testator was incapable of writing a will, or did so under undue influence, or if there was forgery or fraud in the making of the will. The courts will require medical and other evidence to establishing that a testator did not have the mental faculty, or testamentary capacity, to make a will. It is not sufficient for a family member to simply assert that the deceased was not mentally fit.

Who is Eligible to Challenge a Will?

Only people with “standing” can challenge a will in Queensland. A beneficiary of a will has the requisite standing to be heard by the court, as does anyone who benefited from any previous will of the testator. There is a final category of person who is entitled to challenge the validity of a will in Queensland: any person who would be entitled to inherit if there was no will (that is if the estate was intestate). In Queensland, this includes the spouse or de facto partner of the testator, any close relative, and anyone financially dependent upon the testator before their death.

Disputing a Will in Queensland: Contesting the Provisions

Even if a will is valid, it can still be contested on the basis that its provisions are unfair. The legal basis for contesting a will is that the law in Queensland considers that a testator has a moral responsibility to leave reasonable provision for their dependents if they have the necessary resources. The courts will evaluate factors such as the extent of the financial need experienced by the person contesting the will, the needs of other beneficiaries of the estate, and the relationship between the testator and the person contesting the will. The court asks what a “reasonably minded testator” would do in the circumstances, and it may order that a greater share of the estate be distributed to the person in greatest financial need. The court may even order that someone who received no provision in the will be made a beneficiary, and given a share of the deceased estate. This most commonly occurs when someone has decided to disinherit a child. The disinherited child must prove to the court that they are in financial need and that their parent had a moral responsibility to make provision for them.

Disputing a Will in Queensland: Who Is Eligible To Contest a Will?

As with challenging a will, not everyone has standing to contest a will.  In Queensland, under section 41 of the Succession Act 1981, the only people with standing to dispute a will on the basis that it is unfair are the spouse and child of the deceased, or someone who was “dependent” upon the deceased. This means that, for instance, a grandchild does not automatically have standing to contest a will in Queensland, unless the testator was financially supporting the grandchild before their death. This limitation is different from some Australian jurisdictions, where grandchildren automatically have the same standing to contest a will as children.

Disputing a Will in Queensland: Next Steps

For more information on disputing a will in Queensland through contesting or challenging the estate, or for any other legal advice or support, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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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