Challenging a Will

Challenging a Will in Queensland

If you are considering challenging or contesting a Will or defending a Will against challenge, it is critical to obtain legal advice from an experienced lawyer.

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Challenging a Will can be a complex legal process. Legal advice from an experienced lawyer should be obtained quickly as there are time limits to these applications.

Usually a valid will reflects the final wishes of the testator. Sometimes circumstances arise where family members, dependents or other interested parties feel that the will is unfair or doesn't accurately represent the testators true intentions. In Queensland, the law provides avenues for challenging a Will - known as contesting or disputing a Will. There are specific grounds and time frames that apply.

To challenge a Will you would need to show:

1. Lack of Testamentary Capacity

If it can be shown that the testator lacked the required mental capacity (due to mental illness, dementia, illness/impairment) when the Will was signed, the court may declare the Will invalid.

2. Undue Influence or Fraud

If it can be shown that the testator was persuaded, coerced, manipulated or deceived into making a Will, the court may declare a Will invalid.

3. Inadequate Provision for Family and Dependents (Family Provisions Claims)

The Succession Act (Qld) allows certain family members and dependents - such as a spouse, child, or financial dependent to seek further provision if they believe the Will doesn't leave them adequate support. This doesn't necessarily mean the Will is invalid but argues that the distribution of the assets in the Estate is unfair and so prompts the court to adjust.

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Who can Challenge a Will in Queensland?

It depends on the reason for challenging the Will.

To challenge a Will on the basis that the testator did not have Testamentary Capacity or there was Undue Influence or Fraud, you would need to have a legitimate interest in the estate in order to make a challenge. This would usually include children, siblings or other relatives who believe the Will is not genuine.

Family Provision Claims - Only certain people can make a family provision application. Usually these people are included:

Spouse - including married, Defacto or registered partner
Children - including stepchildren and adopted children
Dependents maintained by the deceased testator before their death.

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The 5 Steps to Contesting a Will in Qld.

Time Limits Apply - Don't delay getting Legal Advice.

Time Limits Apply - Generally, claimants must notify their intention to apply withing 6 months of the date of the testators death and must commence an application withing 9 months. Missing these deadlines can result in the losing the right to challenge (unless the court grants an extension).

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The 5 Steps to Contesting a Will in Qld

1. Seek Legal Advice from an experienced lawyer.

If you think the Will may be unfair or invalid, get some legal advice as early as possible. An experienced lawyer can assess a possible claim and advise on the proper grounds for challenging the Will. They can also explain potential outcomes and costs.

2. Time Limits

In Queensland, time limits apply especially for Family Provision Claims. You must notify your intention to make a claim or apply to challenge a Will, within 6 months of the testator dying and the application must be made within 9 months.

3. Gather Evidence

There must be evidence to support your claim. For lack of capacity or undue influence claims, medical records, witness statements and expert opinions may be necessary. For a family provision claim, financial documents and details of the claimants' relationship with the testator need to establish need or dependency.

4. Mediation and Negotiation

Negotiation and Mediation need to take place before going to court. Many disputes are resolved without going to court and a settlement is reached that modifies the estate distribution without incurring the full cost of a court hearing.

5. Court Hearing

If agreement can't be reached through negotiation or mediation, the matter will go to a court hearing the Supreme Corut of Queensland. The court will look at the evidence, consider legal arguments and make a decision. In cases of lack of capacity or undue influence, the court may declare the Will invalid which means an earlier valid will may apply. If there is no earlier valid will, intestacy rules will apply.

In a family provision case, it may adjust the distributions set out in the Will so that a claimant/s receives a greater share than the Will allocated to them. The court may also dismiss the claim.

Going to court is expensive. Often, costs may be paid from the estate which reduces the inheritance pool for all beneficiaries. The amount of the estate needs to be considered and factored into negotiations and weighed up carefully.

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Safeguard against your Will being Challenged

Careful estate planning can reduce the likelihood of challenges to a Will.

Always:

Seek legal advice when making a Will - ensure it is properly drafted and witnessed and your capacity is clear.
Communicate with beneficiaries - explain your Will to family members so they understand your Will and the reasons behind beneficiary entitlements
Consider a testamentary trust will - setting up a testamentary trust will or gifting property while you are still alive can provide clarity, structure and flexibility, reducing grounds for legal challenges.

If you need advice about challenging or defending a Will, call us. We would be please to assist you.

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