A Guide to Contesting Wills & Estate in Queensland

A Guide to Contesting Wills & Estate in Queensland

When contesting wills in Queensland, you must consult a wills and estate lawyer specialising in family provision claims. If you need a better provision in a deceased person’s will, you might be able to claim by contesting it. However, there are quite a few concerns. 

Eligibility of Contesting A Will 

Before you begin the process for a family provision application, you will need to review your eligibility first. An eligible person who can contest a will are either of the following: 

  • The deceased’s spouse;
  • The deceased’s child; and/or
  • The deceased’s dependant.

Limits in Contesting A Will 

If you intend to contest wills and estate in Redland Bay or anywhere in Queensland, you must provide the executor with a notice within six months of the deceased person’s date of death. Beyond that, the estate may be distributed, meaning no assets would remain for you to contest. 

Questioning the Will’s Legitimacy 

An eligible person has the right to question Will’s validity based on the following circumstances: 

  • The Will was revoked by the deceased;
  • The deceased was deemed as mentally incapable of creating a Will; and 
  • The amendments on sections of the Will were performed subsequent to its execution. 

The Court grants or refuses the probate of the Will. Once pronounced for grant of probate, the executor may administer the estate distribution following the terms indicated in the Will. 

Family Provision Application 

Generally speaking, testators may bequeath their estate to any people or causes. However, if such a decision neglects the deceased’s family or dependants’ financial wellness, a family member may propose a Court action for provision from the deceased person’s estate. 

The Succession Act 1981 

The Succession Act, 1981 of the Queensland Legislation allows Courts to award family members or dependents a portion of the deceased’s estate despite the lack of provision in the Will (ss 40–44 Succession Act). You could bring forward a family provision application even if the person died intestate, which means no Will was created at the time of their death. 

Factors to Consider for A Family Provision Application 

The Succession Act of Queensland Legislation does not set out what the Court will consider before making the orders for a Family Provision Claim. Case law considers that the following factors:

  • The size and type of the deceased’s estate;
  • The age of the applicant;
  • The applicant’s health and financial condition;
  • Whether anybody else may be held accountable for the applicant’s financial support;
  • Whether the applicant is obliged to support any other individuals;
  • The deceased’s influence on the applicant’s lifestyle;
  • The strength of any competing claims against the deceased’s estate;
  • The relationship between the deceased and other persons who could be entitled to a portion of a share of the deceased’s estate;
  • Any contribution to the build-up of the deceased’s estate made by the applicant or a beneficiary;
  • Any behaviour on the part of the applicant that might disqualify them from receiving a provisional order; and
  • Any other matter which the Court considers relevant.

Costs of Contesting A Will 

Costs are determined based on the Court’s discretion in Queensland. The successful party will typically be reimbursed for a portion of their legal fees by the opposing party.

The estate will usually pay the applicant’s standard costs if the Judge makes an order for provision for the applicant. Suppose the applicant is unsuccessful and the Judge does not create an order for provision for the applicant. In that case, the Judge may order the applicant to pay the executor’s costs of defending the proceedings.

Conclusion 

Getting dedicated and professional help allows you to contest wills and estates in Queensland successfully. Once you have an adequate provision from the deceased family member’s Will, consulting with conveyancing lawyers in Redland Bay might be useful in all matters concerning properties. 

Bickell & Mackenzie is a family-owned law firm that handles wills and estate in Redland Bay. We specialise in Conveyancing (buying and selling houses, commercial businesses, and retirement homes), Wills and Estates Administration, and Family Law. 

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