5 Myths About Contesting A Will In Queensland
Most people’s knowledge of wills comes from television and movies rather than personal experience. Lack of personal experience in this area can lead to misconceptions, half-truths, and urban legends about estate planning. There are many myths about contesting a will in Queensland, not least because the rules differ between each Australian state and territory. People misunderstand the law on who can contest a will in Queensland, what is considered a fair provision in the state, and the financial implications of launching a claim. This article exposes five myths about contesting a will in Queensland.
Myth about contesting a will #1: “Equal Provision Is Fair”
Testators often believe that it is fair to divide assets equally amongst beneficiaries, especially children. This approach is supposed to be less likely to cause hurt feelings or disputes over the terms of the will. Parents should love their children equally, but it does not follow that they should provide for their children equally in their will. But under Queensland succession law, an equal division of property is probably not a fair distribution. A testator should provide for each beneficiary’s needs and disparate finances, health and employment prospects. Otherwise, a beneficiary in financial distress who receives an equal share can claim further provision from the deceased estate.
Myth #2 “Leave A Token Bequest So A Beneficiary Cannot Contest The Will”
Another myth about contesting a will that solicitors hear regularly is that a person cannot contest a will if they receive any provision in the will, even if it is for a token amount. Although this is the case in some overseas jurisdictions, it is not the law in any Australian state or territory.
In fact, the only obstacle to making a claim is whether a person is eligible under succession law in Queensland. For example, a testator cannot prevent their former spouse from making a claim by leaving them a token bequest. Similarly, a testator cannot effectively disinherit a wayward adult child by leaving them a nominal amount in the will.
Myth #3: “All Beneficiaries Are Eligible To Contest A Will”
Another myth about contesting a will that regularly circulates is that if someone is a beneficiary of a will, they are legally entitled to contest the provisions of that will. Actually, there is a set list of people who can make a Family Provision Claim in Queensland. Under section 41 of the Succession Act 1981, a claimant can only be the deceased’s spouse, child or dependent. These categories of people can contest the will regardless of whether they are beneficiaries of the will. Conversely, not every beneficiary will fit into these categories of eligibility.
Myth #4 “You Have To Go To Court To Contest A Will”
While some claims against a will proceed to a court hearing, most estate claims settle out of court. A claimant must notify the executor of an estate before officially filing with the court. The executor can then privately negotiate with claimants to settle a portion of the estate on anyone with a valid claim. Settling is a good resolution for the claimant and the estate, as it saves both sides the trouble and expense of litigating the matter.
Myth #5 “Contesting a will is too expensive.”
It can be expensive to contest a will, particularly if the matter does not settle quickly. However, as mentioned above, many claims against an estate are settled during private negotiations or mediation conferences with the estate’s executor. A claimant can obtain their entitlement in this way without incurring extensive legal fees or court costs.
The prospect of up-front legal bills can dissuade someone from claiming their rightful entitlement. That is why Armstrong Legal offers to take some Family Provision cases on a “No Win, No Fee” basis. This approach gives our clients peace of mind that they will not owe legal fees if their claim is unsuccessful. Indeed, Armstrong Legal only receives payment if we achieve a favourable court order or our client settles with the estate or the beneficiaries. We offer this provisional fee agreement because we are willing to share the risk with our clients and are confident in the merit of their cases.
Additionally, there is every likelihood that a claimant will recoup their legal costs for pursuing the legal action. Under the Uniform Civil Procedure Rules 1999, the court can make cost orders in civil proceedings to instruct one party to pay the legal fees of the other. Often (although not always), when a claimant is successful, they will also receive standard or indemnity costs.
These are just a few of the myths that circulate about contesting a will in Queensland. The contested wills team at Armstrong Legal is waiting to answer your questions about claiming against a deceased estate in Queensland. For more information, please contact or call Armstrong Legal on 1300 038 223.