Challenging or contesting a Will is an emotional decision, and it can also be complicated.
There are several grounds for challenging a Will in Queensland, and they usually fall into the following categories:
- Lack of testamentary capacity: did the person making the Will understand what they were doing? Were they aware of the impact their Will would have? If the person making the Will lacked the mental capacity – due to dementia or another illness – then the court could declare that Will to be invalid.
- Undue influence or fraud: was the person making the Will coerced in any way or manipulated? This can be a challenging one to prove, as the court Will need evidence the person making the Will was under the influence of an outside party
- Inadequate family provision: if the deceased’s spouse, child or other financially dependent person feels they were not sufficiently provided for, they can contest the Will. This kind of challenge does not argue about the validity of the Will, but it questions the content.
What happens when you contest a Will?
The first thing you will need to do is speak to an experienced Wills and estates lawyer as soon as possible. They will be able to tell you if your claim is a good one and give you advice. It’s important to note that in Queensland, you only have six months from the date of the person’s death to lodge a claim or a challenge to a Will.
It’s also important you have enough evidence – for example, witness statements, medical records, or financial documents will be needed.
Before going to court, you can opt for mediation, where each person involved can reach a settlement, without the cost and stress of going to trial.
If mediation fails, you will be required to attend a court hearing, where the evidence will be examined, and a judge will make a decision. You may, or may not, get the outcome you’re looking for when going to trial.
Challenging a Will can be expensive, and costs are left to the discretion of the court, meaning any legal costs could be paid from the estate, leaving a smaller inheritance for everyone involved.
Contesting a Will in Queensland is a structured process that requires professional guidance and help.
The Wills and estates experts at Bickell & Mackenzie can assist you in navigating this sensitive and complex area of law, ensuring the best possible outcome for you and your family.
