Who Can Contest a Will in Queensland?
Navigating the intricacies of wills and estate disputes in Queensland requires a clear understanding of the legal framework and your rights as a potential claimant or beneficiary. From contesting a will based on lack of capacity or undue influence to understanding intestacy rules when there is no will, the process can be complex and sensitive.
We explore the grounds for challenging a will, eligibility criteria for claimants, timelines for legal action, and the pivotal role of legal advice in protecting your interests.
Laws in Queensland regarding challenging a will
In Queensland, the Succession Act 1981 provides provisions for challenging a will under specific circumstances. Eligible individuals can submit a Family Provision Application to the Supreme Court, which assesses whether the testator (the person who has died, known as the "deceased") acted reasonably.
What does it mean to “challenge” or “contest” a will?
Contesting or challenging a will refers to the legal process by which a person disputes the validity of a will or seeks to change its terms. There are several grounds under which a will can be contested:
Lack of legal capacity: This means the deceased did not have the mental capacity to understand the consequences of making a will at the time it was created.
Testamentary agreement: If the will-maker agreed to provide a benefit to someone in exchange for services rendered during their lifetime — even if the will does not explicitly include the gift. Similarly, if one partner of a blended family alters their will after the other's death, potentially depriving the deceased partner's children of inheritance.
Undue influence: This occurs when the deceased person was coerced or unduly influenced by another person into making decisions that were not their own.
Fraud or forgery: If the will was obtained through fraudulent means or if someone forged the deceased's signature.
Improper execution: A will must be executed in accordance with specific legal requirements. If these requirements are not met, the will may be considered invalid.
Family provision claims: Under the Succession Act 1981 (Qld), certain eligible persons can make a claim for provision from the deceased's estate if they believe they have not been adequately provided for.
Who can dispute a will?
Under Section 41 of the Succession Act, individuals are eligible to contest a will in Queensland if they are the deceased’s spouse, child, or dependant.
Spouse: The term "spouse" is defined as the deceased’s husband, wife, de facto partner, or registered partner as per the Relationships Act 2011, including former spouses or partners.
Child: "Child" does not refer to age, but whether they are the natural (biological) children, unborn children, lawfully adopted children, and stepchildren of the deceased.
Dependant: A "dependant" can be the deceased’s parent, a parent of the deceased’s child (if under eighteen), or any person under eighteen who was financially supported by the deceased at the time of death, regardless of their relationship (e.g., grandchildren, step-grandchildren, former step-children, siblings, nieces, nephews, or foster children). For someone to qualify as a "dependant," they must have been primarily supported by the deceased at the time of death.
Typically, grandchildren, nieces or nephews would not be counted as an eligible person unless they were also the deceased's dependant.
How long do I have to contest a will?
To contest a will, written notice must be provided to the executor within six months of the date of death. If this contest is not resolved, it may be determined by a court, however, legal action must be commenced within nine months of the date of death.
If legal action is not commenced within nine months of the death date, it may be too late to contest the will and is left to the discretion of the court as to whether they accept the "out of time" application. When determining whether to proceed with the family provision claim, the court will assess the length of the delay, the reasons for the delay, and whether the estate has been distributed.
How does the court decide on making a family provision order?
The Succession Act does not define what the court must take into account when deciding to make a family provision order. However, some of the factors they may take into account include:
● The financial position of the person contesting the will, and whether they are supported by anyone else
● The health of the applicant and whether they are responsible for supporting others
● Their lifestyle and whether the deceased person was supporting this in any way
● The applicant's relationship to the deceased
● Any contributions the applicant made to the deceased's estate assets
● The level of entitlement of other beneficiaries.
What if the deceased person did not have a will?
When the deceased died intestate (meaning they died without a will), the Succession Act allows courts to award family members or dependants a portion of the deceased's estate. This is done through an administrator, who is appointed by the court, and they essentially act as the executor of the will. The administrator uses the estate assets to settle any liabilities, then distributes the remainder of the estate according to the intestacy rules.
Where the deceased person has a spouse but no children, the spouse will be awarded the entire estate. If there are children, the spouse will receive $150,000 and a portion of the remaining estate depending on how many children are entitled to the estate assets.
When the deceased has no spouse or children, the court will seek to award the estate to any lineal descendants — being their grandchildren. If there are no grandchildren, the next in line are the deceased's parents.
If there are no lineal descendants or parents, the estate then goes to the next of kin in the order of siblings (including their nephews or nieces if any siblings are already deceased), grandparents, uncles or aunts.
When there are no next of kin, the government is entitled to the entire estate.
Seek legal advice
If you do not have a will or if you are considering contesting a will, it is crucial to seek expert legal advice. At Bradley and Bray, we specialise in matters of wills, estates, and succession planning. Whether you need assistance in drafting a comprehensive will that reflects your intentions accurately, or if you are considering contesting a will and need guidance on your legal options, we are here to help.
Contact Bradley and Bray today to schedule a consultation.
Disclaimer: 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 take no responsibility for any use of the information provided in this article.
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