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How To Stop Someone Contesting A Will (Qld)

A testator specifies their wishes for the distribution of their estate in their last will and testament. A will is a binding legal document, but it is not impervious to challenge or contest. While a person has testamentary freedom to write their will as they see fit, there is a concomitant allowance for eligible parties to question whether the will is valid and fair. There is legislation in each Australian state that can override the wishes of the testator based on public policy considerations. This article explores how to stop someone contesting a will in Queensland, whilst acknowledging that it may be impossible to completely guarantee this outcome.

Contesting A Will In QLD

In Queensland, the Succession Act 1981 permits certain parties to dispute the validity of a will or its provisions. Someone challenges a will when there is doubt as to the validity of the document. By contrast, someone contests a will in circumstances when they believe that they have not received adequate provision from the estate. A claimant must establish that the testator had a moral responsibility to make provision for their support, and then prove that they have financial needs that are not met under the existing will.

In the event that a claim escalates to a court hearing, the testator’s moral obligation to the claimant will be of central concern, with an examination of the relationship between the two parties. The court’s primary question will be what a reasonably minded testator would have done in the same circumstances. Any claim will be weighed against the entitlement of existing beneficiaries and other claimants because from a practical perspective any new or enhanced provision to one beneficiary will result in a reduced provision for another beneficiary.

Essentially there is no way to prevent someone from contesting a will in Queensland.  What is possible is for a testator to approach their estate planning in such a way as to minimise the likelihood that someone will contest their will. The best way to stop someone contesting a will in Queensland is to make adequate provision for anyone with a valid claim against the estate. In Queensland, this means the testator’s spouse or de facto partner, child or stepchild, and any dependent that the deceased was substantially maintaining before their death.

The testator should keep in mind the question, “what would a reasonably minded testator do?” as this is the litmus test that the Supreme Court will apply during a Family Provision Application. The testator should also make careful and comprehensive note of the reasoning behind each bequest so that it is clear why they made specific provision in that amount in light of the beneficiary’s current and future needs.

This prosaic approach is obviously not a way to disinherit or exclude someone who has a genuine claim against the deceased estate. However, there are other options for a testator to manage their estate planning so that their assets are distributed according to their wishes. One way to minimise the risk of someone contesting a will is to reduce the number of contestable assets in the deceased estate.

Structuring Assets

A testator can, for example, make sure that major assets and bank accounts are jointly owned with their chosen beneficiary. Upon the testator’s death, the property and bank accounts will pass directly to the surviving owner. The testator can also create a binding death benefit nomination (BDBN) to designate a recipient for any life insurance or superannuation payouts. These BDBNs ensure that funds are handed directly over to a beneficiary and are never included as an asset in the deceased estate.

Another strategy that can be used by a testator is to give gifts during their lifetime to family members, friends or their favourite charity. This approach has several benefits, not least that the testator will have the pleasure of seeing their beneficiary enjoy the gift. However, there is a chance that this will affect a testator’s taxation liability and income support benefits.

Time Limits For Contesting A Will In QLD

A claimant can be prevented from contesting a will if they do not make a claim within a set time frame. In Queensland, a claimant needs to inform the executor of the estate in the six months following the death of the testator, otherwise, the executor is free to begin distributing the assets of the estate. A Family Provision Claim must be filed in the nine months following the testator’s death unless the court gives permission for an out of time application. A late application is unlikely to be heard unless there is a compelling reason to allow an exception.

The experienced solicitors on the contested will team at Armstrong Legal are well equipped to help you with all your legal needs. They can counsel you on the best approach to stop someone from contesting your will and help you draft your will to safeguard your testamentary wishes. Please contact our team on 1300 038 223 to get started without delay.

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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