Will Disputes & Estate Litigation | ROCHE Legal

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. However it is important to act fast if you believe the estate left behind may leave you out, or be distributed unfairly. Strict time limits apply to making a claim to set things right.

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. A Family Provision Application is the most common type of legal challenge to an estate.
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.
Unfair or improper distribution by executor/administrator – if you believe the estate is being distributed incorrectly or unfairly by the Will’s executor or appointed administrator.
Other reasons.

If there was no Will left by the deceased, it is more difficult to challenge the estate however not impossible. When someone dies without a Will, they are said to have died intestate. Read more about Queensland’s laws of intestacy and your rights as a beneficiary.

Family Provision Applications

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

Frequently Asked Questions – Estate Litigation FAQ

Will you run my Estate Litigation claim No Win No Fee?

Yes. Roche Legal offers No Win No Fee representation to everyone with a qualifying claim for further and better provision of a deceased estate. However, a nominal initial fixed fee is payable to protect your time limitation to make a claim and investigate your prospects. If we determine that your prospects of a successful claim are good, we shall offer you our no win no fee representation.

We do not offer No Win No Fee services if you require us to defend an estate from someone attempting to make a claim.

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?

Your 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 also possible that a claim may be able to be brought against:

the executor of the will themselves in their personal capacity if they have administered or executed the will inappropriately; or
a solicitor if the Will was drafted by them incorrectly.

Someone else is making a claim on the estate - am I entitled also?

More than one person may be entitled to make a family provision claim on an estate. However, different people may have different entitlements. Contact us if you are unsure whether you have a claim.

Someone else is making a claim on the estate - how do I stop them?

If you require assistance to defend a claim being made on an estate, and you believe the person should have no entitlement, Roche Legal can assist.

Legal fees for the defence can often be paid from the estate itself rather than yourself directly. Contact us to learn more.

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