Contesting or Disputing a Will

HOW TO CONTEST OR DISPUTE A WILL IN QUEENSLAND?

There are generally two ways of disputing or contesting a Will:

  1. Questioning the validity of the Will; or
  2. Proving that there has been an inadequate provision for you under the Will. 

QUESTIONING THE VALIDITY OF THE WILL

A person may dispute the validity of a Will, by proving that the Will is not the last valid Will of the deceased. Some grounds to dispute the validity of the Will are:dispute

  • The deceased revoked the Will or made a later Will.
  • The deceased married after making the Will and the Will was not made in contemplation of the marriage.
  • The deceased lacked the testamentary capacity to make the Will as at the date of the Will. For example: the deceased had an intellectual or mental disability; the deceased did not understand the contents or nature of the document they were signing; the deceased was coerced (compelled by force), unduly influenced or was under duress to sign or make the Will.
  • The Will was not executed correctly. For example, the Will has not been signed by the deceased and witnesses on every page or a witness is also a beneficiary under the estate, or parts of the Will were amended after the Will was executed by the deceased.

Generally, the Court decides the validity of the Will by granting or refusing Probate of the Will, or by revoking an existing Grant of Probate. Once a Grant of Probate is obtained, an executor may proceed to distribute the estate in accordance with the terms of the Will and carry out the deceased’s instructions under the Will.

For this reason, It is important, if you doubt the validity of the Will, you must act quickly and let the Executor know as soon as possible and before the Grant of Probate is obtained.

While not strictly contesting the validity of the Will, it is possible to challenge a Will by questioning the construction where the meaning is unclear or ambiguous.  For example, if the deceased left a Divorce, Family Lawhouse to their grandchild Joe and the deceased has two grandchildren with the name Joe. The Executor or beneficiaries may apply to the Court to have the Will interpreted by considering rules of construction and other evidence which shows the real intention of the deceased.

INADEQUATE PROVISIONS/FAMILY PROVISION

If you have been left out of the Will or you feel you have not inherited enough under the Will and are entitled to more from the estate.

Generally, a person can leave their possessions and money to anyone they choose. However, you may be able to bring a Court action for a provision from the estate of the deceased even though the deceased did not provide you with anything or little in their Will.

Who is Eligible?

In order to contest a Will, you must be an eligible person. An eligible person is someone who falls within one of the following categories:

  • The spouse at the date of death.
  • A De Facto spouse at the date of death.
  • A Child of the deceased, including a step-child or an adopted child.
  • A former spouse.
  • A person with whom the deceased was living in a close personal relationship at the date of death.
  • A person who was wholly or partly dependent on the deceased; i.e., relied financially upon the deceased.

Grounds to Claim

An eligible person who wishes to challenge a Will upon the basis that they have not received enough of inheritance must demonstrate that the provision provided for under the Will was inadequate for their proper “maintenance and support” and that they will suffer hardship as a result of the deceased’s decision to give their assets to others.

The Court considers many factors when determining a family provision application, for example:

  • The applicant’s financial position with reference to their income, assets, liabilities and expenditure, as well as any medical, educational and lifestyle needs;
  • Whether any other person is liable to support the applicant;
  • Whether the applicant is bound to support any other persons;
  • The applicant’s health;
  • The deceased’s influence on the applicant’s lifestyle;
  • The age of the applicant;
  • The size and nature of the deceased’s estate;
  • The strength of any competing claims to the deceased’s estate;
  • The relationship between the deceased and other persons who might have a claim to a share of the deceased’s estate;
  • The relationship between the deceased and the applicant;
  • Any contribution made by the applicant or a beneficiary to the build-up of the deceased’s estate;
  • Any conduct on the part of the applicant which might disentitle them to order for provision (serious criminal behaviour, estrangement, drug or alcohol abuse, etc); and
  • Any other matter which the Court considers relevant.

TIME LIMITS

In Queensland, there are two important time limits that apply for contesting a Will.

If you want to contest/dispute a Will in Queensland, you must first give notice to the Executor that you intend to contest the Will. This notice should be in writing and must be given within six months of the date of death. If the Executor does not receive notice of a potential claim after six months has passed, the Executor can distribute the estate and there may be no estate assets left for you to make a claim against.

The second time limit which applies to family provision applications in Queensland requires you to file an application in the Court within nine months of the date of the deceased’s death.

If you miss the second time limit, you can make an application out of time, however, it is at the discretion of the Court whether to allow you to make the application. In deciding whether to allow an “out of time” application, the Court will consider a range of factors, including:

  • The length of the delay;
  • The reason for the delay;
  • Whether the estate has been distributed; and
  • Your conduct relating to the estate; for example, have you followed the correct process, have you ignored correspondence from the Executor or the Executor’s legal representative, have you tried to resolve the matter directly with the Executor? etc.

WHO PAYS THE COSTS OF CONTESTING/ DISPUTING A WILL?

In Queensland, costs are at the discretion of the Court, but 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.

This means that:

  • If you are successful and the Judge makes an order in favour of you, the estate will usually pay your standard legal costs; and
  • If you are unsuccessful and the Judge makes no order in favour of you, the Judge may order you to pay the Executor’s costs of defending the proceedings.

Related articles Death to Distribution: Estate AdministrationEstate Planning during COVID-19

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