Contesting a Will

Contesting a Will involves proving that the distribution of assets to beneficiaries under a Will was unfair. To contest a Will in Queensland, you must make a family provision claim and be an eligible person who has been left without adequate provision for proper maintenance and support from the estate of a deceased person. That is, you have been unfairly left out of their Will.

One of the most common reasons which may lead to a family provision application is that the person who passed away had not updated their Will. For example, someone may have come into the deceased person’s life as a spouse or domestic partner, after their last Will was drafted, and they did not update the Will to provide for that person in the Will. That may mean that the person left out of the Will is required to make a family provision application to seek provision for them under the Will.

Time limit to contest a Will

If you intend to contest a Will, you should start the claim as soon as possible after the death of the Will-maker, and you become aware of the contents of the Will.

In Queensland, the Succession Act 1981 (Qld) (‘the Act’) dictates the process to contest a Will. The Act provides that you have 6 months after the deceased’s death to provide written notice to the Executor of the estate about your intention to make a claim. This time limit is extremely important, as whilst you may provide notice later, if the Executor of the estate does not receive notice of a potential claim within 6 months, they can distribute the estate and there may be no assets remaining to make a claim against.

After the 6-month notice period, you have a further 3-month period (9 months from the deceased’s death) to lodge a family provision claim. Applications made after the 9-month time limit may only be lodged if the Court exercises its discretion to grant an extension of time.

How to contest a Will

Who is an eligible person?

The Act provides a limited list of people who are classed as ‘eligible persons’ to make a family provision claim. The list of eligible persons includes the deceased person’s:

• • spouse (including married and de facto couples);
  • child (including stepchildren and adopted children); or
  • A dependant is someone who has been wholly or substantially maintained or supported by the deceased at the time of death. Some examples of people who may be dependents are parents and dependent former spouses.

Just because you are an eligible person does not mean that you can successfully contest a Will. It must be determined that inadequate provision was made in the Will for you, not just that you personally feel the Will is unfair.

What is adequate provision?

The Court will consider a variety of factors to determine whether adequate provision has been made for an eligible person. These considerations may include:

1. 1. the value of the deceased person’s estate;
   2. the financial position of the applicant (the person contesting the Will);
   3. the applicant’s individual circumstances (including age and health);
   4. the relationship between the applicant and the deceased person;
   5. the applicant’s contribution to building up the deceased person’s estate; and
   6. the character and conduct of the applicant. If the court is of the opinion that the applicant’s character or conduct disentitles them, the court can refuse to make an order favourable to the applicant.

How IM Lawyers can help

At IM Lawyers, we have the expertise to assist you to contest a Will and determine whether you are an eligible person and have not received adequate provision.