Contesting a Will in QLD

When a family member dies it is often an extremely emotional time. This can be made worse if there is any kind of dispute against the Will of the deceased.

A deceased person’s spouse, child or dependent, who considers that adequate support has not been made for his or her proper maintenance and support, can apply to the Court for an order that provision be made out of the estate for their benefit pursuant to Part 4 of the Succession Act 1981 (“the Act”).

A deceased person’s spouse includes their husband, wife, de facto partner as well as their dependent former husband or wife.

A deceased person’s child includes a stepchild or adopted child.

A deceased person’s dependent includes a deceased person’s parent or any person under 18 years who was wholly or substantially maintained or supported by the deceased at the time of the deceased’s death.

Section 44(3) of the Succession Act 1981 (QLD) stipulates that an executor or personal representative of an estate may distribute the estate of a deceased after 6 months from the deceased’s date of death if they do not have notice of any application or intended application for family provision. Accordingly, to protect your interest in the estate you should give notice of your intention to file an application for provision or further provision within 6 months from the deceased’s date of death.

Section 41(8) of the Succession Act 1981 (QLD) then stipulates that such a proceeding must be instituted within 9 months after the death of the deceased. It is at the Court’s discretion whether to extend the time if it is satisfied that sufficient cause can be shown.

An application for family provision can be commenced in either the District Court or the Supreme Court, depending upon the amount of provision being sought.

The monetary limit of the District Court is $750,000.00.

The court will consider 4 things when deciding if adequate provision has been made from the Estate for your proper maintenance and support, namely:-

  1. Your financial position;
  2. The size and nature of the deceased’s estate;
  3. The totality of the relationship between yourself and the deceased;
  4. The relationship between the deceased and other persons who have a legitimate claim on the estate.

The court looks towards your own financial position and the size of the estate to determine your needs relative to the value of the estate. The court looks at your relationship with the deceased, and the relationship the deceased had with others entitled to a claim on the estate, to ascertain whether the conduct of those claiming disentitles them to provision and whether it is fair that the share of other beneficiaries’ is reduced to make provision for yourself. The court may also look at the financial position of the other beneficiaries in comparison with your own financial circumstances.

A Will can also be challenged as follows:

Undue Influence – if someone attempts to influence the terms of the Will or if physical, psychological or threatening duress was placed upon the deceased the Will can be contested.

Incapacity – if the deceased lacked capacity to make the Will meaning they did not understand the nature and effect of their Will they were signing or were unable to make rational decisions about how their estate is distributed the Will can be contested.

Contract to Make a Will – sometimes people may choose to enter into a binding contract to make their Wills in a certain way. Problems occur when one of the parties makes a later Will which is different to the contract. On most occasions the other party is not told of the change or in some circumstances has passed away. Providing the Wills have been drafted correctly and can be enforced legally, a person affected by the breach of the Contract may be entitled to make a claim.

If you think you are eligible to contest a Will and would like further advice please contact our Department Manager Donna Tolley, on direct line (07) 5506 8241 or by email on dtolley@attwoodmarshall.com.au to arrange an appointment.