If your family member has recently passed away and left a Will that you were either left out of entirely or you did not receive the gift that you thought you would be receiving, you may have grounds to contest the Will.
To be able to contest a Will on the grounds that you have not been adequately provided for, you need to meet certain criteria first.
Contesting a Will on this grounds is called a Family Provision Application which is made pursuant to the provisions of the Succession Act 1981.
Who is eligible to contest a Will in Queensland?
In Queensland, to be able to contest a Will, you must be an eligible person. An eligible person is someone who is:
- the spouse of the deceased;
- a child (including adopted and stepchild) of the deceased; and/or
- a dependant of the deceased.
A ‘dependent’ refers to any person who has been “wholly or substantially maintained” by the deceased at the time the deceased died. This can be any person, such as a friend or companion, as long as they can prove that they were financially reliant upon the deceased on the date of their death.
What is the time limit for contesting a Will?
Once a person has determined that they are eligible to challenge the Will, they must ensure they are within the time limits that apply in Queensland for contesting a Will.
Anyone who is planning on contesting a Will must first give written notice to the executor of the Will, outlining their intention to make a claim against the estate, within 6 months of the date of death. After this initial 6 month period, if the executor has not received notice of a potential claim, then they are able to distribute the estate.
The claimant will also need to file their application in the Court within 9 months of the deceased’s date of death.
It is possible to make an application outside of this limitation date, however, the Court assess these situations individually, dependent on factors such as why the claimant delayed making the application, how far outside the limitation date they made the application and whether or not the estate has already been distributed.
On what other grounds may a Will be contested?
Contesting the Will itself (as opposed to being inadequately provided for) can be done by an eligible person because they believe:
- the deceased did not possess the mental capacity required to make a valid Will; or
- the Will was amended after it had been executed by the deceased; or
- the Will was revoked.
The Court will need to make a determination on the claim and will either grant or refuse probate of the Will. An existing grant of probate may be revoked.
I feel I have been inadequately provided for in a Will. What are my options?
Generally speaking, it is the decision of the deceased to bequeath their property to whichever people or organisations they choose. However, if their decisions mean their immediate family or their dependants will suffer financially, then one or more of the eligible parties is able to bring a family provision application to the Court.
Evidence in the form of income, assets and liabilities and expenditure will need to be provided to the Court to establish the need for the provision to be granted. Conversely, a Court may find that the deceased’s decision not to leave the claimant much or anything at all was justified based on the claimant’s conduct and/or relationship with the deceased during their life.
What will the Court consider in relation to my case?
There is no set list of factors, however, if you are challenging a Will, it should be expected that at least some of the following will be taken into consideration:
- the financial position of the applicant;
- the size of the deceased’s estate;
- the age and health of the applicant;
- the relationship that existed between the deceased and the applicant;
- relationships that may exist between the deceased and others who may also have a claim to a share of the deceased’s estate;
- simultaneous claims to the deceased’s estate;
- if the applicant made any contribution to the deceased’s estate or any of its beneficiaries; and
- other matters that the Court finds to be relevant.