Contesting a Will and Winning

The passing of a close family member or friend is a difficult time.  This can be made worse when you discover that your entitlement from the deceased’s estate is being challenged.  On the other hand, you may want to dispute a Will as you feel that you have been unfairly left out of the Will or find that you will be receiving less than the amount you had expected to receive from the estate.  You may also wish to dispute a Will as you have doubts about the deceased’s mental capacity at the time the Will was made or have concerns that the deceased had been subjected to undue influence pressure from another person when making the Will.

If you are considering contesting a Will or the distribution of an estate where there is no Will, we aim to provide you with clear advice about the legal process and practical matters to assist you to resolve the dispute in the most cost effective manner.  We also offer advice and representation if you are the Executor or Administrator of the estate or a beneficiary defending your entitlement under a contested Will.

Grounds for contesting a Will

There are generally 3 main grounds for contesting a Will, namely:

1. The Will-maker did not have the requisite mental capacity to make a Will at the time they made the Will.
2. At the time of making a Will, the Will-maker was unduly influenced or pressured by another person into making the Will, such that the Will was not made freely by the Will-maker.
3. A claim for further provision from the estate can be made by a spouse, child or dependant of the deceased, where in terms of the deceased’s Will or a result of the intestacy laws, adequate provision is not made from the estate for the proper maintenance and support of the spouse, child or dependant.

Contesting a Will – lack of testamentary capacity

Generally, a person can make a Will leaving their property to any person or organisation they wish.  However, where the deceased person lacked testamentary capacity, that is, the deceased did not have a mental capacity sufficient to make a legally binding and valid Will, the Will can be set aside and the next earlier Will in time becomes the last Will of the deceased.  If there is no earlier Will the rules of intestacy under the Succession Act 1981 (Qld) will apply.

To have sufficient capacity to make a Will, a Will-maker must:

• understand the nature of the dispositions made by the Will and their effects;
• be aware of the extent of the property of which they are disposing by the Will;
• appreciate the claims on their estate to which they ought give effect; and
• not have suffered from a disease of the mind, that is, a condition that prevents them from making a rational decision.

Before a Court may set aside a Will on the grounds that the deceased lacked testamentary capacity, it must be shown that at least one of the above elements was not present at the time the person made the Will.  The Court regards a document that looks like a Will as prima facie being a valid Will.

Medical evidence is usually most important to determine whether or not a Will-maker had adequate capacity.  However non-medical witnesses may also be able to give relevant evidence about a Will-maker’s capacity.

Contesting a Will – undue influence

Undue influence occurs when a Will-maker is put under such undue pressure by the conduct of another person or persons, that the Will can be said to be a product of the other person’s conduct and not the free voluntary and independent intention of the Will-maker.

It normally occurs in relationships where there is an inequality of power, causing the weaker party to submit to the wishes of the dominant party.  In certain relationships, the Court presumes undue influence.  Such relationships include those between a parent and child, a lawyer and client and a physician and patient.  The presumption can be rebutted.

Undue influence does not need to be exercised intentionally by the person to coerce the Will-maker.  However, most cases involve a family member, friend or trusted acquaintance who has exercised influence with the intention of forcing a desired gift in the Testator’s Will that is contrary to the true will and intention of the Testator.

Family provision claims

Even where a Will-maker had adequate capacity to make a Will and made the Will without being influenced by any other person, a Will may nevertheless be contested by a person claiming further provision from the estate. 

Who is eligible to claim further provision from an estate?

Only people in prescribed relationships with the deceased may claim further provision from the estate.  The prescribed persons are a spouse, child or dependant of the deceased.  Each of these terms is carefully defined under the Succession Act 1981.

Adequate provision

Whether or not adequate provision has been made for a particular person is a matter for the discretion of the Court, taking into account factors which generally include:

• the size of the estate;
• any benefits already provided to the applicant by the deceased during their lifetime;
• any financial and non-financial contributions made by the applicant to the estate or the deceased’s welfare;
• the applicant’s own financial needs;
• the needs of the beneficiaries named in the Will;
• the nature and quality of the relationships between the applicant and the deceased and the deceased and their beneficiaries; and
• the provisions made by the deceased in the Will.

If you are successful in satisfying a Court that adequate provision has not been made to you from an estate, the Court will usually order that either a payment or transfer of property be made to you from the estate.  The Court may also order the estate to reimburse you for some or all of your legal costs incurred in making application for provision. 

Time limits

There are time limits which must be strictly adhered to in order to avoid the risk of losing a right to claim provision from an estate. 

A person intending to make a claim for provision from an estate should give notice of that intention to the Executor or Administrator of the estate within 6 months after the deceased’s death.  Any application for further provision must be made within 9 months after the deceased’s death, although in certain circumstances the Court may grant leave for an application to be made out of time.

How to contest a Will

Please contact our team so we may advise you on the process of contesting a Will.