Contesting Wills Brisbane

You may be able to contest a Will in Queensland if you believe you have been unfairly left out or not adequately provided for. This is known as a Family Provision Claim, and it allows certain eligible people, such as spouses, children, or dependants, to seek further provision from the estate.

If there is no Will (intestacy), you may still be eligible to bring a Family Provision Claim under Queensland law.

It’s important to understand that contesting a Will (seeking further provision) is different from challenging the validity of a Will. You may be able to challenge a Will if you believe:

• The Will-maker lacked mental capacity at the time of making the Will
• The Will was signed under undue influence, coercion, or pressure
• The Will was not properly signed or witnesses, and therefore is not legally invalid
  
  

Our experienced contested Wills and estate lawyers will review your circumstances and advise you on the most appropriate course of action to protect your rights and interests.

Not everyone can contest a Will. Under the Succession Act 1981 (Qld), an “eligible person” may apply to the court for a family provision order. An eligible person includes:

1. A spouse (e.g. wife or husband, civil or de facto partner, or dependent former wife or husband, or civil partner);
2. The deceased person’s child (including adopted children and stepchildren); or
3. 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.
   
   

If you’re unsure about your eligibility, our contesting Will lawyers in Brisbane can assess your situation and explain your legal options.

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.

What factors does the court consider in a Family Provision Application?

The court will consider:

• 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 review 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.

If you’re the executor of an estate and the Will has been contested, it’s important to seek legal advice as early as possible. As executor, your role is to remain neutral and ensure the estate is administered in accordance with the terms of the Will, and to defend any claims made against the estate.
When someone contests a Will in Queensland, usually through a Family Provision Claim, they are seeking further provision from the estate because they believe they have not received adequate provision.

As executor, you must:

• Notify all beneficiaries of the claim
• Pause distribution of the estate until the dispute is resolved
• Engage legal representation to help you respond to the claim and protect the estate
• Work towards a resolution, often through mediation, before the matter proceeds to court
  
  

At Attwood Marshall Lawyers, we regularly act for executors involved in contested estate matters and can guide you through the process to ensure your duties are fulfilled and the estate is properly managed.

Yes, a stepchild can contest a Will in Queensland under the Succession Act 1981 (Qld) if they were financially dependent on the deceased or treated as a child of the family. However, stepchildren must meet strict eligibility criteria, and each case will be assessed on its individual facts.

Our Brisbane estate litigation lawyers can help you determine whether you’re eligible to bring a claim and what evidence you may need to support your case.

If a Will is declared invalid, due to lack of capacity, undue influence, or improper execution, the estate will usually be distributed according to the rules of intestacy. This means the estate will be divided among surviving relatives in a set order under Queensland law.

In some cases, a court may order a previous Will to be considered the deceased’s last Will and testament.

If you’re concerned about the validity of a Will, it’s important to act quickly and get legal advice. We can help you understand your rights and whether a challenge is appropriate.

Yes, you can still contest a Will after probate has been granted provided you are within the relevant time limits. In Queensland, you must notify the executor within six months of the date of death, and file your claim in court within nine months.

It is crucial to act quickly and seek legal advice from probate lawyers to avoid delays or losing your right to make a claim.