Contesting Wills

Estate Litigation

Have you been left out of a Will?

If you have been left out of a Will, or inadequately provided for in someone’s Will, we can help you get what you’re entitled to.

A Family Provision claim is an application to the Supreme Court for a share, or a larger share, from the estate of a deceased person. Where adequate provision has not been made for the proper maintenance and support of certain categories of persons relating to the deceased, the Court may make an order that such provision be made out of the estate in your favour.

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FAQs

Select a region for state-specific information

A family provision claim can be brought by someone who believes they have not been adequately provided for under the terms of a Will, or under the rules of intestacy, as long as that person falls within the categories of eligibility set by legislation.

In Queensland, the following are “eligible persons” who may apply to the Court for a family provision order:

a) a spouse (including a husband/wife, de facto partner, civil partner or dependent former husband or wife or civil partner);

b) a child of the deceased person (including a stepchild or adopted child); and

c) a dependent of the deceased person.

A “dependent” means: 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 the age of 18 years; who was being wholly or substantially maintained or supported by the deceased person at the time of the deceased person’s death.

A claimant for family provision must act promptly as strict time limits apply.

In Queensland, a claimant must notify the executor or administrator of their intention to bring a family provision claim in writing within six months from the date of death and the claim must be filed in Court within nine months from the date of death of the deceased.

The Court has the discretion to direct an application be heard out of time. The onus is on the applicant to establish sufficient grounds for extending the time limit. The most significant considerations for the Court in exercising the discretion include whether there is an adequate explanation for the delay; whether the beneficiaries are prejudiced and whether the estate remains intact.

Once eligibility is established, the legal test applied in family provision applications is, in summary, as follows:
 
  1. Whether there is inadequate provision for the applicant’s proper maintenance, education and advancement in life under the Will of the deceased or the intestacy rules (this is a question of fact although it necessarily involves some value judgment); and
  2. If so, what if any, provision ought to be made out of the estate in favour of the applicant (this is a discretionary exercise).
 
The Court will examine all relevant circumstances. In particular, the following matters are relevant for the Court’s determination of the two-stage test as set out above:
 
  • the relationship between the applicant and the deceased person;
  • the value and location of the deceased person’s estate;
  • the financial circumstances of the applicant, including their current and future financial needs;
  • whether the applicant has any physical, intellectual or mental disabilities;
  • the financial circumstances and health of the beneficiaries of the estate.

The costs involved in bringing a family provision application can be expensive as these type of proceedings usually involve Supreme Court litigation. The legal costs incurred will depend significantly upon the issues you choose to pursue, the extent to which you instruct your lawyers to pursue them and the conduct of all parties to the litigation, including third parties whose conduct is not within your control. The actual costs incurred can be greatly affected by your instructions and the conduct of the executors defending the estate. Ultimately, the greater amount of cooperation you receive from them, the less your overall fees will be.

Costs are at the absolute discretion of the court. Usually, they follow the event. This means that the successful party in legal proceedings will usually have some of their legal costs paid by the other party. Specifically, in relation to proceedings to contest a Will, the court may have regard to whether a party has failed to comply with the rules or a practice direction of the court, whether irrelevant material was put before the court, the size of the estate, any offer of settlement made by the parties and any other matter that the court considers relevant. If the Judge makes an order for provision for the applicant, the estate will usually pay the applicant’s standard costs. If the Court considers there were genuine reasons for mounting the challenge, the Court may award the applicant’s costs be paid from the estate.

If the applicant is unsuccessful and the Judge makes no order for provision for the applicant, the Judge may make no order as to costs (meaning that the applicant is responsible to pay his or her own costs) or may order the applicant to pay the executor’s costs of defending the proceedings (meaning that the applicant is responsible to pay his or her own costs as well as the costs of the other party).

This is one of the many reasons why we recommend that you seek advice from a lawyer who specialises in this area of law. We will assess your case and advise you on the strength of your case and likely outcomes, including any cost orders so you know where you stand from the very start.

A family provision claim can be brought by someone who believes they have not been adequately provided for under the terms of a Will or under the rules of intestacy, as long as that person also falls within the categories of eligibility set by legislation.

In New South Wales, the following are “eligible persons” who may apply to the Court for a family provision order:
 
  • the wife or husband of the deceased;
  • a person who was living in a de facto relationship with the deceased (including same sex couples);
  • a child of the deceased (including an adopted child but not including a stepchild. For a stepchild to be eligible they must also demonstrate dependency on the deceased person – see further information below);
  • a former wife or husband of the deceased;
  • a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased;
  • a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.
 
A “close personal relationship” (other than a marriage or a de facto relationship) is between two adult persons, who are living together, one or each of whom provides the other with domestic support and personal care.
 
Whilst a step-child is automatically eligible to apply for a family provision order in Queensland, under New South Wales legislation stepchildren are not automatically eligible to apply for a family provision order. However, a stepchild may still bring an application in New South Wales if they meet certain criteria.
They must demonstrate:
 
a) they were, at any particular time, wholly or partly dependent on the deceased person (for example, dependent on the deceased person for accommodation); and
 
b) they were, at any particular time, a member of the household of which the deceased person was a member.

A claimant for family provision must act promptly as strict time limits apply.

In New South Wales, a claim for family provision must be filed within twelve months from the date of death of the deceased.

The Court has the discretion to direct an application be heard out of time. The onus is on the applicant to establish sufficient grounds for extending the time limit. The most significant considerations for the Court in exercising the discretion include whether there is an adequate explanation for the delay; whether the beneficiaries are prejudiced and whether the estate remains intact.

Once eligibility is established, the legal test applied in family provision applications is, in summary, as follows:

  1. Whether there is inadequate provision for the applicant’s proper maintenance, education and advancement in life under the Will of the deceased or the intestacy rules (this is a question of fact although it necessarily involves some value judgment); and
  2. If so, what if any, provision ought to be made out of the estate in favour of the applicant (this is a discretionary exercise).

 

The Court will examine all relevant circumstances. In particular, the following matters are relevant for the Court’s determination of the two-stage test as set out above:

  • the relationship between the applicant and the deceased person;
  • any obligations or responsibilities owed by the deceased person to the applicant;
  • the value and location of the deceased person’s estate;
  • the financial circumstances of the applicant, including their current and future financial needs;
  • whether the applicant is financially supported by another person
  • whether the applicant has any physical, intellectual or mental disabilities;
  • the applicant’s age;
  • any contribution made by the applicant to increase the value of the estate;
  • whether the deceased person has already provided for the applicant during their lifetime or from the estate;
  • whether the deceased person provided maintenance, support or assistance to the applicant;
  • whether any other person is responsible to support the applicant;
  • the applicant’s character;
  • any other claims on the estate;
  • any other matter the court may consider as relevant.

The costs involved in bringing a family provision application can be expensive as these type of proceedings usually involve Supreme Court litigation. The legal costs incurred will depend significantly upon the issues you choose to pursue, the extent to which you instruct your lawyers to pursue them and the conduct of all parties to the litigation, including third parties whose conduct is not within your control. The actual costs incurred can be greatly affected by your instructions and the conduct of the executors defending the estate. Ultimately, the greater amount of cooperation you receive from them, the less your overall fees will be.

Costs are at the absolute discretion of the court. Usually, they follow the event. This means that the successful party in legal proceedings will usually have some of their legal costs paid by the other party. Specifically, in relation to proceedings to contest a Will, the court may have regard to whether a party has failed to comply with the rules or a practice direction of the court, whether irrelevant material was put before the court, the size of the estate, any offer of settlement made by the parties and any other matter that the court considers relevant. If the Judge makes an order for provision for the applicant, the estate will usually pay the applicant’s standard costs. If the Court considers there were genuine reasons for mounting the challenge, the Court may award the applicant’s costs be paid from the estate.

If the applicant is unsuccessful and the Judge makes no order for provision for the applicant, the Judge may make no order as to costs (meaning that the applicant is responsible to pay his or her own costs) or may order the applicant to pay the executor’s costs of defending the proceedings (meaning that the applicant is responsible to pay his or her own costs as well of the costs of the other party). This is one of the many reasons we recommend that you seek advice from a lawyer who specialises in this area of law. We will assess your matter and advise you on the strength of your case and likely outcomes, including any cost orders. You will know where you stand and what to expect from the very start.