Is there a time limit to contest 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 challenging 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 do I have to contest 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.

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 challenging 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.

Estate Litigation

Contesting A Will in Qld (Family Provision Claim)

24/04/2021 By // by Wayne Davis

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: …

Contesting A Will in Qld (Family Provision Claim)Read More

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Contesting A Will in Qld (Family Provision Claim)

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