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Unfair Wills (Qld)

After a close family member dies, it is natural to assume that they will remember you in their will, especially if the deceased is a parent or spouse. When the deceased has unexpectedly disinherited you, or you receive a surprisingly small inheritance, it is also natural to feel that the deceased has left an unfair will. This article defines the concept further and explains how to contest unfair wills in Queensland.

What Constitutes Unfair Wills In QLD?

Just because someone thinks that a will is unfair does not mean that the law recognises it as such. In Queensland, there is a general assumption that a testator will leave as much as they can for their spouse, children and dependents in their will. The court considers what a reasonably minded testator would have done, and when a testator fails to meet this expectation, then the will is considered to be unfair.

Contesting Unfair Wills

A testator has an absolute right to leave their assets to whomever they wish in their will. This is called “testamentary freedom”. However, in order to ensure fairness to dependents, family members have a right under the Succession Act 1981 to contest the deceased’s will. This means that eligible parties are legally entitled to question the testator’s last wishes and seek to overturn the provisions of an unfair will.

A person’s right to dispute an unfair will is not indefinite. They must give written notice of their intention to make a Family Provision Claim to the executor of the estate before six months have passed, and must commence legal action within nine months.

Who Can Contest Unfair Wills?

Only a limited category of people can make a Family Provision Application to the Supreme Court of Queensland. The first category of eligible claimant is the deceased’s spouse or de facto partner. The law assumes that a spouse has the greatest claim on the estate of their deceased spouse. Beyond that, eligibility is restricted to the children of the deceased, and anyone who can establish that they were dependent upon the deceased for support.

Assessing A Claim Against An Unfair Will

The court assesses each case on the merits, deciding whether an applicant is entitled to further provision depending on varied criteria. For instance, the court will assess the financial needs of the claimant, compared to other beneficiaries and claimants, and the type of relationship and obligation between the deceased and claimant.

Example Of Unfair Will: Disinheriting An Estranged Child

When a parent no longer has a good relationship with his or her child, it can seem perfectly natural to make a will that reflects this estrangement. A parent may decide to leave nominal provision or disinherit an estranged child entirely. The parent may feel justified in leaving the bulk of their deceased estate to other children with whom they maintain a good relationship. Actually, the law in Queensland does not consider an estranged child to be disqualified by reason of a lack of closeness with the deceased. In fact, a child who is estranged from their parent may be experiencing financial hardship, and this factor may weigh in their favour in a contested will case.

Example Of Unfair Will: Equal Distribution

Sometimes a testator will create an unfair will in an attempt to provide equally for all beneficiaries. A will should be a considered reflection of the needs of each beneficiary, and beneficiaries often have unequal needs. For instance, a father has two children, one who is gainfully employed and financially independent, and another who has a disability and will never be able to fully support himself. In this scenario, if the testator left a will leaving his estate in equal shares to his children, then it may well be considered an unfair will. The testator should write a will that recognises the current and ongoing financial needs of each individual child.

Example Of Unfair Will: Contribution To The Estate

The testator should also give consideration to each specific beneficiary’s contribution to the estate itself. An adult child who helped grow a family business has a greater right to benefit from the business than one who never contributed at all. If the family business is part of the deceased estate, then it would be unfair for the testator to ignore the contribution of a beneficiary to the value of the asset.

Example Of Unfair Will: Conditional Bequest

Sometimes, a testator will choose to make a conditional bequest in a will so that a beneficiary only receives a bequest if certain conditions are fulfilled. For example, a conditional bequest may stipulate that a child only receives a cash bequest when he or she completes a university degree. While a beneficiary may see this stipulation as unfair, the court has upheld the legality of such conditional bequests in similar cases. There are, however, conditional bequests that are unfair because they are seen as an infringement of public policy, such as a stipulation that a beneficiary must divorce their current spouse before they can receive a bequest.

The contested wills team at Armstrong Legal is here to help if you believe that you have not received a fair entitlement and want to contest an unfair will. Call 1300 038 223, and the team can advise on your rights and the procedures involved in making a claim against a deceased estate.

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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