Contesting a will (or challenging the administration of an estate if there was no will) can be a delicate and complex matter to resolve. The courts are quite wary and careful about interfering with the wishes of a deceased person. However, there are situations when contesting a last will is absolutely necessary, especially when a beneficiary feels they’ve been treated unfairly. This is commonly called a Family Provision Application (FPA).
Whenever someone wants to contest a will, it will take a lot of time, effort, and consideration for all parties involved to resolve the dispute. This can be particularly challenging when considering the grief that each party experiences when losing a loved one.
It is important to know your rights and act swiftly if you suspect you may be entitled to more than what was provided for you in the will.
What does “challenge” or “contest” mean?
Contesting the administration of an estate and challenging the validity of a will are actually two very different things.
When a person challenges or disputes a will, they are questioning the validity of the will itself. This type of case usually happens when the person who wrote the will was suffering from a condition that may have affected their ability to think clearly upon writing the will.
Challenging the validity of a will usually begins by lodging a caveat in the Supreme Court of Queensland. However you must be sure that you have ‘standing’ to lodge the caveat application. The caveat is lodged to stop the granting of probate (a grant of probate is proof that the will is valid).
To successfully challenge the validity of a will, you need to convince the court that the deceased had, for example, a lack of capacity, lack of knowledge, fraud or undue influence, or other relevant reasons.
Challenging the distribution of an estate, on the other hand, is when an eligible person or beneficiary has been left out of the will or been unfairly or inadequately provided for in the will. This also requires the court’s intervention.
Challenging an estate can only be done by an eligible person.
In order to challenge the distribution of an estate, a person must be eligible to do so based on the requirements of the law. A person is considered eligible with respect to the deceased’s estate if they fall within the following criteria:
- The deceased’s spouse (whether current or former)
- A de facto partner (sometimes there may be more than one)
- The child of the deceased (including estranged children; step-children; and adopted children)
- A dependent (for example: a parent of the deceased; or the other parent of a surviving child under the age of 18 years of that deceased person; or a person under the age of 18 years).
The Succession Act provides descriptions for each of the criteria mentioned above to avoid any confusion. However a ‘dependant’ could theoretically be anyone if it is justifiably argued. It’s best to seek the help of an experienced estate litigation solicitor to assist you in determining whether you are an eligible person or not.
Source: section 41 of the Succession Act 1981 (Qld).
There are time limits that apply to contesting a will.
If you plan on challenging an estate, you must first give notice to the will executor about your intention to contest it by filing a court application for further and better provision. The written notice must be provided strictly within six months of the date of death. If the executor of the will received no notice after the prescribed time, they could distribute or transfer assets of the estate among the beneficiaries without any recourse.
However, there is a second time limit that also applies to Family Provision Applications, which require a claimant to file their court application within nine months of the date of death. In some instances, a court can allow applications past the limitation date however this is not easy and often requires engaging a solicitor and barrister to assist you.
Source: section 41 of the Succession Act 1981 (Qld).
Contesting requires the claimant to demonstrate they were inadequately provided for.
If you challenge an estate on the basis that you did not receive enough of an inheritance, you need to demonstrate the merit of your claim by producing substantial evidence. Your evidence will mostly be based on your own personal circumstances, such as your:
- living circumstances (e.g. renting / owning a home)
- medical needs
- educational and lifestyle needs
- previous reliance on the deceased
This evidence is always in the form of statements known as affidavits. The executor or administrator of the will is entitled to reply with their own affidavit in attempt to counter your allegations.
Going to Court
Before your case will be reviewed and considered by a judge, an informal meeting between the parties is usually held. The purpose of this is to narrow the issues and attempt to negotiate a settlement without incurring further legal costs.
If a settlement agreement is not reached at the informal meeting, the Family Provision Application will proceed to a mediation where a neutral third party (a mediator) will consider both sides and attempt to propose solutions that each party can live with.
If the mediation fails, the matter will proceed to trial.
Who pays the costs of contesting a will?
Usually the legal costs in making a Family Provision Application are paid from the deceased Estate. However, this is not always the case. If the executors of a deceased Estate do not agree to pay your legal fees, you may need to apply to the Court for costs to be paid. If your application never had merit and/or isn’t successful, you may be required to pay your own costs.
Contesting a will or challenging an estate is never an easy process. The court recognises the sensitivity of the matter and will take time to consider all the arguments and evidence presented in the legal proceedings, if it gets that far.
If you are placed in a situation where you need help challenging the validity of a will, contesting an estate, talk to us at Roche Legal for free initial advice or visit us in our offices in Logan, Brisbane, or the Sunshine Coast.
Roche Legal is a group of experienced Queensland lawyers you can trust to help you with your claim. In addition to estate litigation, we also practice in personal injury law anywhere in Queensland.