Contesting Wills: Brisbane Lawyers
Wills & Estates
Have you been excluded from someone’s Will?
Our Brisbane estate litigation lawyers are experts in resolving Will disputes. We are dedicated to helping you get what you are entitled to.
We understand that disputes over Wills are extremely sensitive and contentious issues. Our team are ready to help you make a Family Provision Application to the Supreme Court if you have not been adequately provided for in someone’s Will, in order for you to receive your rightful share of an estate.
As a Brisbane law firm that is highly reputed in the legal industry for being specialists in succession law, we will help you understand your rights and the process required to resolve a Will dispute effectively and as quickly as possible.
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A Will can be contested by an eligible person if:
- they have been unfairly left out of a Will; or
- if they have not been left adequate provision under the terms of a Will; or
- if there is no Will, under the rules of intestacy, an eligible person can make a Family Provision Claim.
Under Queensland legislation, an “eligible person” who may apply to the court for a family provision order can be:
- A spouse (e.g. wife or husband, civil or de facto partner, or dependent former wife or husband, or civil partner);
- The deceased person’s child (including adopted children and stepchildren); or
- A dependent of the deceased person. A “dependent” is a parent of the deceased person, or the parent of a surviving child of the deceased person under the age of 18 years, or a person under 18 years old, who was being wholly or substantially supported or maintained by the deceased person at the time of their death.
Strict time limits do apply when you are making a Family Provision Application.
In Queensland, you must notify the administrator or executor of an estate within six months from the date of death, that you intend to bring a family provision claim. This notice must be given in writing. You then must file the claim in court within nine months from the date of death of the deceased.
If your claim is made outside of these time limits, it is at the discretion of the court whether the application will be heard out of time. It is your duty to establish sufficient grounds for extending the time limit.
The factors a court will consider include:
- if you can provide an adequate explanation for the delay in making the application;
- whether the beneficiaries are prejudiced; and
- if the estate remains intact.
- Is the claimant an eligible person to make a Family Provision Claim;
- Has adequate provision been provided for the applicant’s proper maintenance, education and advancement in life under the Will. In cases where no valid Will exists, the rules of intestacy will apply; and
- If any provision should be made from the estate in favour of the applicant.
The court will consider all the facts of each case on its own merits. The key factors a court will consider include:
- The relationship between the deceased person and the claimant
- The location of the deceased person’s estate and its value
- The claimant’s financial circumstances (including their current and future financial needs)
- The financial circumstances and health of the beneficiaries of the estate
- If the claimant has disabilities (intellectual, mental, or physical).
Bringing a Family Provision Application can be expensive. These types of applications usually involve Supreme Court litigation. There are various factors that will contribute to the overall costs, including (but not limited to):
- The issues you choose to pursue and the extent you wish to instruct your lawyer to pursue the matter;
- The conduct of all parties involved.
The actual costs incurred can be affected by your instructions and the conduct of the executors who are defending the estate. The more cooperation you receive from the executors or administrators of the estate, the less fees you can expect to pay.
In most cases, the party who is successful in the legal proceedings will have a portion of their costs paid by the unsuccessful party. It is important to note that cost orders are at the absolute discretion of the court.
The court may consider:
- the size and value of the estate;
- whether a party has failed to comply with the rules or a practice direction of the court;
- if irrelevant material was presented to the court;
- any offer of settlement made by the parties; and
- other relevant factors.
If your Family Provision Application is unsuccessful, you may be responsible to pay for your own legal fees. You may also be required to contribute to the executor’s costs they have incurred in defending the proceedings.
This is just one of the reasons why it is imperative to get trusted legal advice from a specialist estate litigation lawyer before making a claim. Our experienced Brisbane estate litigation team understand the complexity of making a family provision application and will be able to assess your claim upfront and provide you with advice about the strength of your case and likely outcome. Your lawyer will also be able to give you an indication on the costs that will be involved in making an application and who will likely be responsible for those costs.