Have You Been Left Out Of A Will?

If your family member or spouse has recently passed away and their will did not make adequate provision for you, or you were left out entirely, you may be wondering if you have any legal options.

The short answer is yes. There are legal options for eligible people who have been left out of a will, but there are a few things the Court will need to consider. Here’s what you need to know if you have been left out of a will.

Who is eligible to contest a will?

In Queensland, to contest a will you must be an eligible person. An eligible person is someone who is:

• the spouse of the deceased;
• a child of the deceased; and/or
• a dependant of the deceased.

A ‘dependent’ is any person who has been “wholly or substantially maintained” by the deceased at the time of their death. It is not a requirement that the dependent is also a spouse or family member; it can be any person, including a close friend or companion, as long as they can prove that they relied upon the deceased financially at the time of their death.

An eligible person may also apply to the Court if a person dies intestate (without a will).

Under what circumstances can a will be contested?

If an eligible person has been left out of a will and wishes to challenge it, they must do so on the grounds that:

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

What will the Court consider if I contest a will that I have been left out of?

The party contesting the will should expect for the Court to consider some, if not all, of the following factors in the matter:

• the contents and value of the estate;
• the applicant’s financial position;
• the applicant’s age and health;
• the relationships between the deceased and the claimant, as well as those between the claimant, the deceased, and any other claimants and/or beneficiaries;
• any simultaneous claims being made over the estate;
• if the applicant made any contribution to the deceased’s estate or any of its beneficiaries; and
• any other matters that the Court finds to be relevant.

Is there a time limit for contesting a will?

Yes. A strict time limit applies for parties wishing to challenge a will.

Any party who intends to contest a will must make their intentions known in writing to the Executor of the will within six months of the date of the deceased’s death. Once this period has passed, the Executor may distribute the estate if they have not received notice of a claim being made against it.

In addition to written notice of the intent to make a claim, the claimant is required to file their application in the Court within nine months of the deceased’s date of death.

An application outside of the time limit is possible, however, the Court will assess late applications individually to determine whether the matter should proceed. Factors determined include why the claimant was delayed in making the application, how long after the limitation date the application was made, and the status of the estate (e.g. has the distribution of the assets already occurred?).

If you are an eligible person who has been left out of a will and would like to know what your options are, contact our experienced wills and estates lawyers in Cairns who can help you understand your options.