Contesting A Will in Qld (Family Provision Claim)

Contesting a will, also known as making a family provision claim, is the process of seeking a further or better provision in a deceased person’s will.

There are a number of factors to consider when making a family provision claim, such as:

1. Whether you are an eligible Applicant
2. Whether you have brought the claim within the time limits
3. What the court considers when making a decision.

If you have not been properly provided for in a will, or you have been left out of the will altogether, then you might be able to make a claim by contesting a will.

You can contest a will by making a family provision application in the District Court or the Supreme Court in Queensland.

In this article our estate litigation lawyers will explain everything you need to know about contesting a will by making a family provision application in Queensland.

If you are an eligible person, and you want to contest a will by making a family provision application, then our wills and estates lawyers can help you.

Contesting A Will in Qld

If you are contesting a will or your provision in a will, the determination is essentially a two (2) step process.

The first stage in contesting a will involves a basic assessment of the provision.

If a person is left with an inadequate provision, then what was the proper level of maintenance.

This initial assessment must have regard to (inter alia):

1. The financial position of the parties; and
2. The relationship between the deceased and other persons who have claims; and
3. Any support provided to the claimant by the deceased during their life; and
4. Any promises or statements made to the claimant by the deceased; and
5. The size and nature of the deceased’s estate and any contribution made by the claimant to that estate; and
6. The standard and quality of living that the claimant has become accustomed; and
7. The totality of the relationship between the applicant and the deceased.

The second step is essentially the assessment of what the proper level of maintenance is and what would be an adequate provision.

This second step will determine the Court order that should be made.

However, there are a number of eligibility requirements.

Eligibility Requirements for a Family Provision Claim

There are a number of requirements when contesting a will with a family provision claim, including:

1. You must be an eligible applicant; and
2. The application must be made within the right time limit; and

We will explain these in more detail below.

Contesting a Will – Eligible Applicant

In order to contest a will, you must be an eligible person.

Section 41(1) of the Succession Act 1981 (Qld) says:

If any person (the “deceased person“) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant. [my emphasis]

So, to make a family provision claim, the applicant must be:

1. A spouse of the deceased; or
2. A child of the deceased; or
3. A dependant of the deceased.

A Spouse of the Deceased

A spouse of the deceased can include:

1. The husband or wife of the deceased; or
2. The de facto partner of the deceased; or
3. The registered partner of the deceased; or
4. The former husband, wife or registered partner of the deceased.

In relation to contesting a will by the spouse of the deceased, the Court will try to balance a number of different factors.

The spouse she must be secure in his/her home, have a sufficient income to permit him/her to live in a style to which she is accustomed, and have a fund to enable him/her to meet any unforeseen contingencies.

However, this is balanced against the duration of the marriage, any real contribution to the estate, and any terms of the arrangement between spouses (amongst others).

A Child of the Deceased

A child of the deceased can include any:

1. Child (including unborn child); or
2. A stepchild; or
3. An adopted child.

There are a number of issues that the Court will look at when assessing the eligibility of an adult child to further provision from the deceased estate, including (inter alia):

1. The relationship between parent and child at adulthood; and/or
2. The moral obligation, or community expectation between parent and child; and/or
3. Whether the child is still a dependent or not; and/or
4. The lack of reserves to meet ill health, or the need for financial security; and/or
5. A fund to protect against change of circumstances or fortune; and/or
6. The inability to earn an income.

This is just a few of the things that a Court will take into consideration when exercising its discretion if contesting a will.

The Court will also look at the matter holistically, and apply other relevant factors it deems fit.

A Dependant of the Deceased

A dependant of the deceased can include any person who was being wholly or substantially maintained or supported by that deceased at the time of death being:

1. a parent of that deceased person; or
2. the parent of a surviving child under the age of 18 years of that deceased person; or
3. a person under the age of 18 years.

Wholly is given its normal meaning.  Substantially, is something less than wholly but still significant, or in the main, or as to the greater part.  Substantially is not minimal, ephemeral, or nominal.

In Lohse v Lewis & Anor [2004] QSC 36 at [95] the Court said:

It would make a nonsense of the requirement, if the word “substantially” did not take its meaning from the context given by the use of the word “wholly”. The word “wholly” is unambiguous. The word “substantially” indicates something less than “wholly”, but it connotes something which is still significant. It could not possibly mean in that context “not merely nominal, ephemeral or minimal”. It could in this context be appropriately paraphrased by the words “in the main” or “as to the greater part”.  In determining whether the maintenance or support at the date of death is substantial, the future arrangements that had been planned between the parties and for which provision was made must also be taken into account.

Whether a person is a dependent in relation to contesting a will, will depend on the facts of each matter.

Contesting a Will – Time Limit

If you are an eligible applicant, and you think that you have not been adequately provided for in the will, then if you are contesting a will with a family provision application, it must be made within a strict time limit.

Section 44(3)(a) of the Succession Act 1981 (Qld) says:

(3) No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative … (a) not earlier than 6 months after the deceased’s death and without notice of any application or intended application under section 41 (1) or 42 in relation to the estate

This essentially means that if you are thinking about contesting a will, then you must provide notice of the application to the executor within six (6) months of the death of the deceased.

We recommend that you provide the executor with notice as soon as possible, but certainly before the six (6) month time limit.

If the executor of the estate does not receive notice of the family provision claim, after six (6) months has passed they are able to distribute the estate.

After notice has been given, Section 44(3)(b) of the Succession Act 1981 (Qld) says:

(3) No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative … (b) if notice under section 41(1) or 42 has been received—not earlier than 9 months after the deceased’s death, unless the personal representative receives written notice that the application has been commenced in the court or is served with a copy of the application.

This essentially means that if you are thinking about contesting a will, then you must file the family provision application within nine (9) months of the death of the deceased.

Contesting a Will – Out of Time Applications

In a few instances cases, an application can be made outside of these time limits.

However, this is purely at the court’s discretion, considering a number of factors, including:

1. The length of the delay in bringing the application; and
2. The reason for the delay in bringing the application; and
3. Whether the distribution of the estate has occurred.

However, these are rare cases and are only allowed in the narrowest of circumstances.

Factors the Court Considers when Contesting a Will

If you are an eligible applicant, and you are within time, then you can contest a will in Queensland by making a family provision application.

The Court will consider the following factors:

1. Has adequate provision been made for the Applicant?
2. What provision should be made for the Applicant (if any)?

We will explore these in more detail below.

Has Adequate Provision been made for the Applicant?

The Courts will take a number of factors into consideration when exercising their discretion when contesting a will.

As well as the factors mentioned above, the Court may also consider, inter alia, the following:

1. Contributions made to the deceased estate by the applicant.
2. Current community attitudes or any moral claims.
3. Estrangement or disentitling conduct.
4. Any gifts or financial transactions made by the deceased to the applicant.
5. The financial position of the applicant.
6. The influence of the deceased on the lifestyle of the applicant.
7. The relationship between the applicant and the deceased.
8. The relationship between the deceased and others who have a claim.
9. The size and nature of the estate.
10. Whether anyone else can support the applicant.
11. Whether the applicant has to support other people.
12. Any other matter relevant to the court.

If it is determined that you have not been adequately provided for in a will, then the Court will determine what provision should be made (if any).

What Provision should be made for the Applicant (if any)?

In relation to contesting a will, whether a Court will order further provision should be made is based on consideration of the matters referred to above, and more.

The Court should not be recklessly extravagant or wasteful with the estate of the deceased and must do no more than what is necessary to finalise the claim.

What is a Family Provision Application?

Contesting a will with a family provision application is an application to the Court for an order that further provision be provided from the estate of the deceased to the applicant.

The jurisdiction in Queensland is usually the District Court.  However, if the net value of the estate exceeds $750,000, then it is better to file in the Supreme Court.

Applications are made in accordance with District Court Practice Direction 8 of 2001.

The types of order that the Court can make includes:

1. That adequate provision be made for the proper maintenance and support of (the Applicant) out of the estate of the deceased; and
2. Any costs of and incidental to the application be paid out of the estate of the deceased on an indemnity basis; and
3. Any such further or other orders as to the Court may seem meet.

The usual procedure is to have an application, draft order, and supporting affidavits.

The family provision application should also include the following information (if applicable):

1. The full name, address, and occupation of the deceased; and/or
2. The date of the deceased’s death and death certificate; and/or
3. The age of the deceased at the date they died; and/or
4. Grounds for reduction of provision or disentitlement (if any); and/or
5. The personal details of the applicant (name, address, age, relationship to the deceased); and/or
6. The personal details and financial circumstances of any beneficiaries; and/or
7. Are there any competing claims on the deceased estate; and/or
8. Any contribution to build the deceased’s estate by the applicant; and/or
9. Any maintenance and/or support of the applicant by the deceased; and/or
10. Proof of the domicile of the deceased; and/or
11. Evidence of the eligibility of applicant to bring the claim; and/or
12. The financial circumstances of the applicant; and/or
13. Proof that the application is brought within time; and/or
14. The name, age, and DOB of any dependants / children of the applicant; and/or
15. Any reasons for failing to make sufficient provision for the applicant; and/or
16. The applicant’s relationship with the deceased; and/or
17. The applicant’s health, mental health, and/or any incapacities; and/or
18. The location and value of the deceased estate; and/or
19. Any evidence that the deceased died testate or intestate.

The application should also include any other relevant information and any evidence that will be beneficial to the application.

If you are an eligible person, and you want to contest a will by making a family provision application, then our wills and estates lawyers can help you.

Contesting A Will FAQ

We get asked a number of regular questions in relation to contesting a will.

Our contesting a will by family provision claim frequently asked questions will hope to answer some of them.

How much does contesting a will cost in Qld?

It depends on what happens in the litigation.  If it settles early then it will cost less than if it goes all the way to a trial.

Is there a time limit when contesting a will?

Yes.  In Queensland the time limits are six (6) months from the date of death to notify the executor, and nine (9) months from the date of death of the deceased to file the family provision application.

Who can contest a will?

In Queensland, a spouse, child or dependant can contest a will.  This includes a child (including unborn child); or stepchild; or adopted child.  The husband or wife of the deceased; or the de facto partner of the deceased; or the registered partner of the deceased; or the former husband, wife or registered partner of the deceased.  A dependent parent of the deceased; or the parent of a surviving child under the age of 18 years of that deceased person; or a dependent person under the age of 18 years.

Who pays the costs in will challenge cases?

The usual process in the Court is that costs follow the event.  This means that the “winner” of the litigation has a percentage of their costs paid by the “loser” of the litigation.

In some cases, the costs may be paid out of the estate.

Do I need to go to court when contesting a will?

No.  Most family provision claims settle out of court.  You will need to put forward your best case to the executor of the estate, and the claim will likely settle without the need for Court intervention.

How long does it take when contesting a will?

You have six (6) months from the date of death to give notice to the executor that you intend to make a family provision claim.  You have nine (9) months from the date of death to actually file the claim in the District Court of Queensland or the Supreme Court of Queensland.

Can a niece or nephew contest a will in Queensland?

A niece or nephew can only contest a will in Queensland if they are also a dependent of the deceased.  This means that they are a person who was being wholly or substantially maintained or supported by that deceased at the time of death.

When must family provision applications be brought?

In Queensland, a family provision claim must be brought (filed) within nine (9) months from the date of the death of the deceased.

What do I do if I feel I have been unfairly left out of a will?

If you have been unfairly left out of a will; you are an eligible applicant; and you are within the required time limit; then you can make a family provision application.

A family provision application seeks to obtain an order from the Court that you be given a better share of the deceased estate.  This is also known as contesting a will.

Can I contest a will?

A person can contest a will if they are an eligible person (a spouse, child, or dependant) and the time limits have not expired.  There are some cases where a person is allowed to contest the will outside of time, but these are not common.

By contesting a will, do I have to go to court?

No.  The first step in the process is to give notice to the executor of the estate that you intend to make a family provision claim.  If you are an eligible person; are within the required time limits; and have a genuine claim; then it is very likely that the matter will simply settle before going to Court.

I was financially dependent on the deceased. What are my options?

As a dependent of the deceased, you may be able to make a claim against the estate if you are:

1. a parent of that deceased person; or
2. the parent of a surviving child under the age of 18 years of that deceased person; or
3. a person under the age of 18 years.

A dependant of the deceased can include any person who was being wholly or substantially maintained or supported by that deceased at the time of death.

I am estranged from my parents; can I claim against their estate?

Yes.  Estrangement does not exclude you from making a family provision application in Queensland.  However, if the estrangement also includes disentitlement, then this might be a lot harder case to run and may reduce the amount of provision you will be awarded.  An example of disentitling conduct might be serious domestic and family violence, for example.

Can I contest a will after probate has been granted?

A family provision application to contest a will must be brought within nine (9) months of the date of death.  You can contest a will after probate has been granted if it is still within the nine (9) months after the death of the deceased.

Does superannuation form part of a deceased’s estate monies?

Superannuation and policies of life insurance may or may not form part of a deceased estate.

Payments of superannuation and policies of life insurance can go directly to beneficiaries after the death of the deceased.  The trustee has discretion to pay any superannuation payments to the deceased’s personal representative or a dependant.

I am the de facto partner of the deceased. Am I entitled to a share of the estate?

Yes and no!  An eligible person includes a de facto partner of the deceased.  However, just because you are an eligible person does not mean that you are automatically entitled to a share of the estate.  You must also prove that you meet the other requirements allowing for a larger provision from the deceased estate.

Can grandchildren contest a will?

A grandchild can only contest a will in Queensland if they are also a dependent of the deceased.  This means that they are a person who was being wholly or substantially maintained or supported by that deceased at the time of death.

If you are an eligible person, and you want to contest a will by making a family provision application, then our wills and estates lawyers can help you.