Contesting a Will in Queensland – a “How to” Guide
Losing a loved one is usually a difficult and emotionally charged time, but equally it is a time of transition, reflection and commemoration. There are a range of services that can help you celebrate a life, from compassionate funeral directors to your family and your friends. If you are struggling during this time, we recommend talking with your loved ones, or even a professional grief counsellor.
If you believe that you have been inadequately provided for in a loved ones will, there are also a range of steps you can take. Referred to as a “Family Provision Application”, this legal process is another pathway that can assist you.
Why Contest a Will?
There’s a common misconception in society that people who contest wills are driven by greed or other selfish motivations. Truthfully, many people are simply trying to understand the situation and right what they believe to be a wrong.
If you are eligible to contest a will and believe that you have been left without adequate provisions, you may want to consider challenging. Some things that the courts may consider include:
- Your financial position and that of other claimants
- Your standard of living
- Your relationship with the deceased and any support you provided to them during their life
- Your contribution to the deceased’s estate
While it isn’t easy to define “adequate provisions”, Queensland law does outline the parties who can challenge a will. These are:
- The deceased’s spouse – including husband or wife and registered partnerships (current or former), and de facto arrangements
- The deceased’s child – including biological, lawfully adopted and unborn children, as well as step children
- The deceased’s dependant – including parents, children, and any person under the age of 18 being maintained by the deceased at the date of death. Dependants must have been “wholly or substantially maintained” by the deceased person.
Challenge the Validity
As well as challenging a will to receive “adequate provisions”, you may be able to challenge a will’s validity altogether. You can challenge the validity of a will if you believe that:
- The will was forged or there was fraud involved
- The deceased was unduly influenced in making the will
- The deceased lacked the mental capacity to make a will
The Contesting Process
Contesting a will – or making a Family Provision claim – can only be done when the deceased owned land situated in Queensland, or if they lived permanently in Queensland at their date of death, but owned personal property and assets somewhere else.
To challenge a will in Queensland you must inform the executor of the deceased’s estate as soon as possible. This should occur before they apply for a grant to carry out the will.
If you do not act immediately this process can take place and there may be nothing left to claim against. That’s why you should talk to a wills and estates lawyer as soon as you are considering making a claim.
Time is an essential factor when it comes to challenging a will. To challenge a will around Brisbane, talk to the wills and estates experts at Bartels Lawyers or call (07) 3341 2222 to organise a free initial consultation.