Grounds For Contesting A Will (Qld)
In Queensland, the Succession Act 1981 allows a person to dispute a will if the circumstances meet certain criteria. Under this law, an eligible person can file a Family Provision Application and the Supreme Court will review the will to determine whether the testator acted in a reasonable way. The court will only consider an application from an eligible person, lodged within nine months of the testator’s death, which demonstrates sufficient basis for the action. This article lists the primary grounds for contesting a will in Queensland.
Contesting A Will
There are two different ways to dispute a will: a challenge to the validity of the will, and a contest of the provisions of a will. Someone contests a will when they believe that the testator had a moral responsibility to make adequate provision for them and that the existing distribution of the deceased estate does not reflect this obligation. In Queensland, a claimant makes a Family Provision Application to the Supreme Court in the hope that the court will allocate them some provision from the estate, or a greater provision than they received under the will.
Grounds For Contesting A Will
In Queensland, an applicant has grounds to contest a will if they:
- Make a claim within statutory time frames;
- Are an eligible person;
- Were entitled to certain support from the deceased and received inadequate or no provision from the estate.
Time Limits for contesting a will
There are statutory time limits that apply to contesting a will in Queensland. The claimant must notify the executor of their intention to make a claim in the six months following the testator’s death. A Family Provision Application must be lodged within nine months from the date of death. There is a narrow provision for late notification and application, but the Court must accept the applicant’s justification for the delay.
Grounds For Contesting A Will:
Under the Succession Act 1981, there are only three types of people who are eligible to contest a will in Queensland: the deceased’s spouse, issue or dependent.
The testator’s marital or de facto spouse or registered partner is entitled to dispute the provisions of the will. The deceased’s “issue” can also file a Family Provision Application with the Supreme Court. A biological child is included in this category of issue, regardless of whether the parents of the child were ever married. A biological child includes an unborn child provided that the child survives and lives for at least thirty days. A child that was adopted according to the Adoption Act 2009 has the same right to contest a will as a biological child. In Queensland, a stepchild is eligible to apply under the category of “child” regardless of whether they were formally adopted.
The last category of people who have grounds for contesting a will are those who were “dependent” on the testator before they passed away. In order to qualify as a dependent, the claimant must have been receiving at least a “substantial” level of financial assistance from the deceased. For example, a persuasive case would typically demonstrate that the claimant was relying on the support of the deceased to meet their basic financial needs. If a claimant can prove they were dependent on the testator for their living expenses, then they should be able to establish an entitlement for support and grounds for contesting the will.
Entitlement to Support / Inadequate Provision
In order to establish grounds for contesting a will in Queensland, a claimant must show that the deceased had a moral responsibility to provide for the claimant’s maintenance and financial support. The claimant must also demonstrate that they either did not receive any provision in the will or that this provision was inadequate. It is difficult to define “adequate” provision broadly, as there will be differences in each case, so it is best to consult a solicitor who specialises in contested wills.
In order for a claim to be successful, the applicant’s financial needs must be more pressing than the needs of the other existing beneficiaries, or the estate must be of a size that a redistribution to the claimant will not negatively affect the other beneficiaries.
The court will take into account a variety of factors when considering a Family Provision Application, including:
- The financial position of the claimant and any other beneficiaries;
- The claimant’s usual standard of living;
- The nature and length of the relationship between the claimant and the deceased;
- Any history of support that the deceased showed to the claimant;
- Any promises that the deceased made to the claimant about how they would divide their estate;
- Any contribution that the claimant made to the deceased estate;
- Any other matter that the court decides is relevant.
It can be difficult to know whether you have the right to make a Family Provision Application. The experienced solicitors on our contested wills team can provide you with an assessment of your case, and answer any questions you have on succession or probate law. We can also suggest the most suitable grounds for contesting a will based on your particular circumstances. Please contact or call the offices of Armstrong Legal on 1300 038 223 to make an appointment.