Contesting a Will in Queensland
What is contesting or challenging a Will in Queensland?
Contesting or challenging a Will in Queensland is also referred to as:
- an FPA or a family provision application;
- a TFM or a testator family maintenance claim (a name more commonly used in NSW or Victoria);
- disputing the Will;
- challenging the Will;
- contesting the Will.
Basically, contesting a Will means launching a claim against the estate of a deceased person arguing that:
- you should receive more from the deceased person’s estate; or
- (if you have been completely written out of the Will) arguing that you should receive something.
These particular claims are brought under a specific piece of legislation referred to as “Family Provision Claims” in Queensland.
There are many other types of litigation involved with Wills including arguments about whether a Will is valid or not.
This page will summarise the things involved in contesting a Will.
Why challenge a Will?
There are many reasons why people have been written out of Wills and why they want to contest the Will. The reasons for contesting are varied and include:
- they need the inheritance to live and survive;
- they feel that it is morally appropriate that they should receive an inheritance as a member of the family;
- the parent wasn’t in their right mind when they cut the person from their Will;
- the parent was under influence and removed the person from the Will when they otherwise wouldn’t have.
Family is complex, complicated, bitter, beautiful and wild. Every Will dispute that we see has unique aspects and intervention on a legal level is necessary to attribute some fairness to the proceedings.
Who can challenge a Will?
Under the relevant law, only an eligible person can can contest a deceased person’s estate. An eligible person is someone who is:
- The deceased’s spouse;
- The deceased’s child; and/or
- The deceased’s dependant.
Whilst the definitions of spouse and child are more or less as you would expect under the Succession Act, in order for any person to be a “dependant” they must have been “wholly or substantially maintained” by the deceased person at the date of the deceased person’s death.
As such, if you relied financially upon the deceased at the date of the deceased’s persons death, you may be an eligible person to contest a Will.
Are there time limits involved in contesting a Will?
Yes. In Queensland, you must start your Will dispute within certain time limits.
The first step is to give a notice to the executors of the estate that you intend to dispute the Will. The notice must be in a proper form and served within 6 months of the deceased passing away.
If the executor does not receive your notice within the 6 months, they can distribute the estate and you may lose all rights to claim. Acting quickly is very important.
One you have served your notice, you must file a claim in the court within 9 months of the deceased passing away. Again, failure to do so could result in you losing your rights to dispute the Will.
Sometimes, applications can be made to dispute the Will outside of this time but it is rare and depends on the facts. The best thing is to act quickly to preserve your rights.
How do you know if you will be successful in contesting a Will?
There have been many disputes about Wills before so it is fairly easy to predict whether you will be successful or not with some surety. It is even possible to guess at the extent of your success (i.e. how much you might receive) though the accuracy of this is somewhat more difficult.
However, the true gauge of whether you will be successful or not and the likely amount of any success will depend on the unique attributes of your case. The following are common factors that are typically investigated in a Will dispute.
- The applicant’s financial position;
- 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 an order for provision; and
- Any other matter which the Court considers relevant.
How much does it cost to contest a Will?
In Queensland, costs are awarded at the discretion of the Court. Typically, if an applicant is successful, the court will order that legal fees be paid in addition to the applicant’s award from the estate. However, it is not guaranteed.
Swanwick Murray Roche offers no win, no fee arrangements for most Will dispute cases provided that our lawyer considers that you are likely to have some success. This can be reviewed at your first appointment.
Contact us
To discuss your matter confidentially, contact us as follows:
- call on 07 4931 1888;
- email on enquiries@smrlaw.com.au
- visit us at 74 Victoria Parade, Rockhampton, QLD
MEET OUR TEAM.
David Lipke
David Lipke is a partner of our Rockhampton firm overseeing the litigation and insurance division in the firm. His experience includes work in institutional claims, workers compensation and motor accident claims.
Terry Tummon
Terry Tummon is a partner of the firm overseeing the family law division. Terry’s experience includes dealing with property settlement and litigation matters.
Robert Rooney
Robert Rooney is a partner of the firm overseeing the commercial & business, property, wills & estates division. His experience includes commercial transaction and advisory work.
Katina Perren
Katina Perren is a solicitor of the firm, Independent Children’s Lawyer and Separate Representative. Her experience includes work in custody, separation, divorce and property settlement matters.
Nicola Goodwin
Nicola Goodwin is a solicitor of Swanwick Murray Roche practicing in family law, divorce and separation matters, parenting disputes and court applications for family matters.