Estate Litigation – Summary

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.

Who do 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.

What do I have to prove to the Court?

Family Provision applications are made under Part IV of the Succession Act 1981 (Qld) (“the Act”). Section 41 of the Act sets out the relevant principles that a Court will take into account when deciding a Family Provision application.

Generally speaking, to be successful in your family provision application you must prove to the Court that you:

  • have standing to bring a Family Provision Application. This means that you must be the spouse, a child, or dependent of the deceased; and
  • have been unfairly and unreasonably excluded from a will (or been left an insufficient inheritance).

Standing

In Queensland, the only eligible people who have standing to bring a Family Provision Application against an estate are:

  • spouse of the deceased e.g. husband, wife, de facto spouse, registered partner, or a dependant former husband, wife or registered partner
  • child of the deceased e.g. biological child, stepchild, child of a de facto spouse, or adopted child
  • dependant of the deceased: any parent/child of the deceased who was being wholly or substantially maintained or supported by the deceased at the time of the deceased’s death.

However, just because a person has standing to bring a Family Provision application, it does not necessarily follow that they will be successful in actually challenging a Will.

Unfair and Unreasonable Exclusion from Will / Insufficient Inheritance

The Court will consider a range of factors as to whether it should order further provision from the estate if you can show that further provision from the estate is needed to meet the costs of your proper maintenance and support. These considerations include:

  • the size and nature of the estate
  • your financial position and reasonable requirements for financial support
  • the financial position and requirements of other beneficiaries and claimants on the estate
  • the nature of your relationship with the deceased
  • the nature of the relationships the deceased had with other beneficiaries and others who may have a claim