Contesting or challenging a Will can be a very emotional and trying process given you are likely still in a state of grieving for your loved one.
You may contest or challenge a Will based on:
- “Family Provision” legislation – this legislation allows for spouses (which includes de facto spouses), children (which includes step-children), and dependents to argue that they have not been adequately provided for in the Will. Strict time limits apply.
- Will Validity – Challenging the validity of the Will when it was created, based on possible undue influence, fraud, forgery, or more commonly, the lack of the testator’s mental capacity.
- Distribution by executor – if you believe the estate is being distributed incorrectly or unfairly by the Will’s executor.
- Other reasons.
Frequently Asked Questions
Are there any important time limits I should be aware of?
Each State of Australia has a different set of rules which apply when contesting a Will depending on where the deceased died.
- In Queensland, the executor must be notified of a challenge within 6 months of the date of death. Then an application must be brought in the court within 9 months of the date of the deceased’s death.
- In New South Wales, a family provision claim must be filed with the court within 12 months of the date of death.
Who can I bring the claim against?
The claim is usually brought against the estate itself by way of application to the court. The executor named in the Will has the responsibility to defend any such challenges to the Will.
It is possible that a claim may be able to be brought against a solicitor if the Will was drafted by them incorrectly.