Common Methods of Disputing a Will: Understanding Your Options

Estate disputes commonly arise in situations involving blended families (such as second spouses or stepchildren), estranged children, and children with financial management issues.

This article will explores some of the most prevalent types of estate claims.

Family Provision Application

Family provision applications are the most frequent type of estate claim. These claims are made by eligible individuals who believe they have not been adequately provided for in the deceased’s will or under intestacy rules (which apply when someone dies without a will).

Who is eligible to make a family provision application?

• Biological, step, and adopted children (both minors and adults)
• Spouses, including husbands, wives, de facto partners, and civil partners
• Dependent former spouses
• Any person who was dependant upon the deceased at the time of death.

Are there any time limits?

In Queensland, specific time limits apply to family provision applications. Written notice of the intended application must be given to the executor or administrator within six months of the deceased’s death, and the application must be commenced in court within nine months of the deceased’s death.

How does the court decide family provision applications?

The court considers a multitude of  factors when determining family provision applications, including, but not limited to:

• The size of the estate
• The financial and health circumstances and needs of the applicant
• The applicant’s relationship with the deceased
• Whether the applicant contributed to the deceased’s estate
• Whether the applicant provided care and support to the deceased
• Competing claims on the estate
• The circumstances and needs of the beneficiaries

There is no mathematical formula for determining these applications; each case is assessed on its own merits.

Family provision legislation is widely debated. While individuals should have the freedom to distribute their estate as they wish, the law also imposes a moral obligation to provide for vulnerable family members. Although family provision applications can result in contested litigation and familial conflict, with appropriate guidance and mediation, lengthy legal proceedings and relationship breakdowns are often avoided.

Lack of Capacity

Concerns about the validity of a will may lead to challenges on the grounds that the deceased lacked the capacity to make the will. Claims about the validity of a will are often raised alongside family provision applications.

Wills are presumed valid if they meet the formal requirements (i.e., properly signed and witnessed). However, this presumption can be overturned if evidence shows that the deceased did not have a sound mind, memory, or understanding of their will or did not know and approve of its contents.

As people live longer, they are more susceptible to mental and physical diseases like Alzheimer’s and dementia, leading to an increase in challenges to the validity of wills.

Undue Influence, Coercion, Fraud, or Suspicious Circumstances

Disappointed individuals may also challenge a will’s validity on the basis of:

• Undue influence or coercion
• Fraudulent creation of the will
• Suspicious circumstances (e.g., the person who prepared the will benefits from it)

To succeed in a claim of undue influence, the evidence must prove that the will was executed as  a free and voluntary act of the deceased.

If you wish to challenge the validity of a will or are an executor defending a claim, seeking legal advice is crucial, as prompt actions may be necessary to protect your interests.

Whether you’re considering making a claim against an estate or are an executor, contact Cairns Wills and Estate Lawyers for an to discuss your options today.