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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Alex Luigi

09:03 21 Dec 21

We are from Wollongong NSW, a few local lawyers told us not to bother with our case. Not only did Wayne and Nicola take on our case, but they said our contract had an unfair clause according to ACL. Wayne and Nicola helped us prepare all the documentation and evidence for our NCAT hearings. We won our case, receiving our monies paid towards a wedding in Bali that could not be delivered due to COVID-19 International Travel Restrictions. Before engaging Wayne I did not know what a Force Majeure clause was and that ours was unfair! Wayne and Nicola thanks a million couldn't have done it without you! We got married last week in Bowral NSW. Thanks to Stonegate Legal we were not out of pocket!

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01:58 02 Dec 21

Thank you, Wayne, and all at Stonegate Legal for all your help.Wayne was able to achieve a successful outcome for us in the end.Unlike many other lawyers he would respond as quickly as possible to all questions and queries we had, and we were never made to feel like we were an inconvenience or that our questions or queries weren’t valid. He would explain everything thoroughly to make sure we were aware of what was going on.Even being from interstate and never actually meeting Wayne face to face we would highly recommend him and his firm to anyone due to how honest and up-front Wayne has always been.He is a man true to his word.

Simon Mangion

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Nicola is very knowledgeable. I found Nicola to be very helpful from the first contact I had with her. Nicola sorted out our legal issue with no fuss and I wouldn't hesitate to use her again. Thanks Nicola

Thomas Sparks

06:13 01 Sep 21

Been using Wayne for a while now and highly recommend for all commercial matters. Great guy and great company!

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Kim Morris

00:35 07 Jan 21

Wayne Davis from Stonegate Legal offered us exceptional professional and upfront advice on our legal matter and supported us the whole way through. Wayne explained the fee's involved from the start to ensure we understood costs, in which we were very thankful. Thank you Wayne we are so grateful for your help on this matter, and to have had a successful outcome! We would highly recommend Wayne Davis for anyone seeking a lawyer who shows honesty and integrity.

michael wall

13:22 09 Jun 20

Wayne has been informative, professional, and clearly set out all legal options regarding my case. I will use Stonegate Legal and Wayne again in the future.

marie jessamine

01:22 27 Apr 20

Thank you Wayne for the help and compassion you provided to us in liquidating the company we worked for, and would not hesitate in referring you to any person that needs legal advice.

Di Gibbs

02:21 07 Mar 20

Sincere thanks Wayne for all your help and professional service. Everything was easy to understand, and I wouldn't hesitate to recommend your company to others. Thank you again.

Andrew Macdonald

06:38 04 Mar 20

Wayne provided good advice, and got us the outcome we were looking for. He was easy to deal with and kept me well informed through the process letting me know the options available as well as his advice. I would recommend Wayne if you are having trouble getting people to pay up!

Mr Shrimp

20:42 12 Feb 20

Thankyou to Wayne for representing us with a judgement debt&dispute with a neighbour via. QCAT.With his experience, professional support and guidance he helped us work through a very stressful time.With Gratitude.Hayley.

Nicholas Wilson

06:01 27 Jan 20

After having some issues with vendors paying their bills I searched for a solicitor to assist in issuing a Statutory Demand. I found two solicitor's firms who had useful websites explaining the process. I contacted both and only Wayne from Stonegate Legal contacted me on the next business day (I am still waiting a month later for the other solicitor's firm).The process was explained to me and it was clear and simple. His pricing structure was clearly laid out so I understood what my commitments would be.Wayne was helpful and provided all information necessary. Should the need arise for a commercial solicitor in the future, I will have no hesitation to use Stonegate Legal again.

Cassie Ireland

22:57 04 Nov 19

Wayne assisted us to enforce a QCAT decision. His knowledge base and level of professionalism were outstanding. We were dealing with a very aggressive defendant however Wayne was able to achieve a successful outcome by way of negotiation without the need to undergo expensive long and drawn out Court proceedings. Thank you again Wayne!

Julie Tibbles

07:40 30 Jul 19

Thanks to Wayne and the team for helping me collect my outstanding debts. You were easy to understand, easy to deal with and you really know your stuff. Thanks again.

Sarah Beardmore

07:11 25 May 19

Thanks Wayne Davis and team for all your amazing help and support. These guys work hard to ensure they can get you the best results possible!

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Contesting A Will in Qld (Family Provision Claim)

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