In Queensland, there is a significant difference between challenging a will and contesting a Will.
Challenging a Will
A challenge to a Will is a challenge to the validity of the document itself, usually as a consequence of the Will being improperly made (ie fraud or forgery or other suspicious circumstances) or made as a consequence of undue influence or lack of testamentary capacity or that it does not meet the formal requirements of the Succession Act 1981 (Qld) to constitute a valid will.
Typically, a challenge to a Will is usually made by a person that holds an interest in the estate, such as:-
- A beneficiary or executor of the will;
- A beneficiary or executor of an earlier will; or
- If the deceased had died intestate, a person that would stand to benefit from the estate under the rules of intestacy in Queensland.
A successful challenge to the Will renders the Will invalid, resulting in any earlier Will or the rules of intestacy being followed thereafter to administer the deceased’s estate and accordingly, the consequences for the estate and beneficiaries in question can be dire, including the loss of any intended benefit by the invalidated will from the estate.
The importance of ensuring that a will is valid and drawn by an experienced estate planning solicitor can therefore not be overstated.
A will can be challenged both before Probate of the will has been issued by the Supreme Court (in which case a Probate Caveat should be urgently lodged with the Court) and after Probate has been issued, the latter of which would require Probate to be returned and the Court will convene a hearing to determine the validity of the will.
Where a challenge to the Will is successful, the successful application may (subject to the discretion of the Court) receive a costs order in their favour. Where such a challenge is unsuccessful, the Court could potentially order the applicant pay the Court costs of the application.
Contesting a Will
Contesting a will is a right afforded to a specific class of people under the Succession Act 1981 (Qld) through the making of a family provision application (“FPA”).
Eligible applicants include a spouse, de facto or registered partner, biological and adopted children, stepchildren and certain other people who are financial dependents of the deceased (either wholly or substantially), whom are entitled to contest on the basis that the maker of the will had a moral obligation, yet failed to make appropriate provision for the claimant’s maintenance and support.
Any claimant must inform the executor in the six months following the death of the deceased by written notice. Claims must also be filed within 9 months following the death of the deceased. Failure to meet this timeframe may result in the distribution of the estate by the executor and the claimant’s right to make an FPA thereafter would be lost.
Extension rights may be given by the Court in certain circumstances, having regard to the length, reasons and circumstances of such delay.
Upon receipt of such written notice, the executor must consider the merits of the claim and negotiate via an alternative dispute resolution process (negotiation, mediation or otherwise) and any cases that are not resolved in these stages will proceed to trial, where the Court may be asked to determine what may be an appropriate level of provision from the estate, based on a number of factors, including (without limitation) the relationship of the claimant to the deceased, the financial position age, health and means of the applicant, the strength of the claim against the deceased’s level of obligation to provide for the applicant or others, who the named beneficiaries are in relation to the deceased and/or the prevailing circumstances (such as any evidence or reasons as to why the deceased may have deliberately or otherwise failed to make provision for the applicant in their Will).
Costs in such proceedings are at the discretion of the Court, who may award costs to a successful applicant (to be paid by the estate) or unsuccessful applicants may have costs orders made against them.
Our team of estate lawyers and litigators understand both the legal aspects and the emotion that often comes with contesting or challenging a will or estate disputes generally and with their experience will work through all legal aspects with determination whilst endeavouring to reduce any stress of complexity.