What's the Difference Between Challenging and Contesting a Will?
A person's death has a profound impact on the ones they leave behind. Adding to the emotional toll of having a family member pass away is when you feel that the will is either invalid, or that you have been inadequately provided for. Knowing what your options are to dispute a deceased estate is the first step to working through what can be quite an involved process.
A good start is understanding the differences between 'challenging' and 'contesting' a will. While they may seem like the same thing, there are actually many differences between contesting a will and challenging a will in Queensland. To know where you stand and what your options may be, continue reading as we explain the difference between challenging a will vs contesting a will.
What is meant by challenging a will?
When you challenge a will, you are effectively questioning the validity of the will. Commonly, family members challenge wills when they feel that the will maker did not have the mental capacity to sign or make a new (or amended) will.
In some situations, wills are challenged when it is believed that the will maker made or amended their will under the undue influence of someone who would benefit from changes being made to the will.
Disputing the validity of a will when you believe that it has been tampered with is also considered to be challenging the will.
The difference between contesting and challenging wills
Unlike challenging a will, which has to do with the validity of wills, contesting a will involves contesting how the deceased estate is set to be distributed. In Queensland, it is common for people to contest a will where they have been left out of the will altogether, they haven't received what they believed they were entitled to, or they haven't received what was promised to them by the deceased person while they were still alive.
Who can challenge or contest wills in Queensland?
Generally speaking, anyone who holds an interest in the estate of the deceased person can challenge a will, in Queensland. Challenging a will, however, doesn't automatically make the person claiming eligible to contest the will.
To challenge a will, whether you feel the will was tampered with or made without capacity or under undue influence, you must file a probate caveat in the Supreme Court of Queensland.
The process to contest a will in Queensland is via a family provision claim. A family provision claim will allow the court to assess whether you have received adequate provision, and if you're entitled to further provision or greater provision within the estate. To contest a will through a family provision claim, you must meet the legal definition of an 'eligible person'. In Queensland, an eligible person is:
one of the deceased person's dependants (being wholly or substantially maintained or supported at the time of the deceased's death);
a child of the deceased; or
the spouse of the deceased person.
Who is considered a spouse under QLD law?
Under the Succession Act 1981 (QLD), a de facto partner and a Civil Partner are considered a spouse of the deceased.
What about step-children, can they contest a will?
Yes, in Queensland, a step child can contest the will of their step-parent if they feel they were not adequately provided for in the estate.
Are court proceedings necessary when lodging family provision claims?
While most deceased estate disputes are able to be resolved through mediation, without the necessity to commence court proceedings, legal services are still required when seeking further provision in a deceased estate.
Access the legal assistance you require to dispute a will
At Bradley & Bray, we know that estate administration is often not a pleasant experience for those you leave behind, particularly if your will is being challenged or contested. This is why we offer thorough estate planning that considers the complexities of your family dynamic and assets. We also assist with the probate process and disputing wills, to assist those that feel they have been unfairly left out of a will.
To find out more about how our expertise can aid in your estate planning journey, reach out to our team, today.
This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm, or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers takes no responsibility for any use of the information provided in this article.
You may also be interested in
