Do I Have Grounds To Contest A Will?

The distribution of a deceased estate can become contentious if a spouse, family member or close friend feels as though they were not gifted the part of the estate they believe they were promised, entitled to or need because they had become dependent on the deceased. Questions of the will’s validity can also arise in some cases.

If this relates to you, you may be wondering if you have grounds to contest a will. Read on to find out.

Who is eligible to contest a Will in Queensland?

To contest a will in Queensland you must be an eligible person. An eligible person is someone who is:

• the deceased’s spouse (married or de facto);
• the deceased’s child; and/or
• a dependant of the deceased.

A ‘dependent of the deceased’ is any person who was “wholly or substantially maintained” by the deceased when they passed. They do not have to be a spouse or child of the deceased, but they must be able to prove they were financially dependent upon the deceased at the time of their death.

Are there time limits involved with contesting a will?

After establishing that they are in fact an eligible person, the individual seeking to contest the will must ensure they are acting within the time limits to do so in Queensland.

Within six months of the date the deceased died, written notice must be given to the executor of the estate outlining the eligible person’s intention to contest the will. After six months the executor is able to distribute the estate if they have not received notice that a claim will be made.

Within nine months of the date the deceased died, the claimant will need to file their application in the Court.

Claimants who fail to act within the nine-month deadline may still be able to make a claim, however, late applications will need to be assessed by the Court individually, and their acceptance by the Court will depend on the factors leading to the delay and whether the estate has already been distributed.

For what reasons can a will be contested?

A will can be also be contested by a person if they are of the opinion that:

• the deceased lacked the mental capacity required to make a valid will; or
• the will had been amended after it had already been executed by the deceased.

Probate will either be granted or refused by the court and an existing grant of probate may be revoked.

What can I do if I wasn’t provided for in a will?

A person may bequest their estate in any manner of their choosing, however, under certain circumstances eligible people may have grounds to contest the will for reasons other than questioning the will’s validity. For example, if the deceased’s dependents or immediate family will suffer financially as a result of an omission, then they may bring a family provision application to the Court.

In cases where the deceased died intestate (without a will), a family provision application may also be brought to the Court.

Applicants will need to provide evidence (including income, expenses, assets and liabilities) to the Court to support their case for why a provision should be granted.

How will a Court decide if the claimant is entitled to more from a deceased estate?

Some factors a Court will use to make a determination include:

• the size of the estate in question;
• the applicant’s financial position;
• the applicant’s age and health;
• what type of relationship existed between the applicant and the deceased;
• the relationships the deceased had with other people who may also have a claim to the estate;
• any other claims being made against the deceased’s estate;
• any contribution the applicant may have made to the deceased’s estate or any of its beneficiaries; and
• other matters that the Court finds relevant.

If you are questioning the validity of a will or feel you have not been adequately provided for and you are eligible to contest but need assistance in doing so, our experienced wills and estates lawyers can help.