Power of Attorney
Due to the fact that a will can be contested or challenged in Queensland, the importance of ensuring your will is valid and drawn by an experienced wills and estates litigation lawyer cannot be overstated. Seek legal advice on wills and estate planning with Marino Law.
Our team of Wills and Estate Lawyers understand the legal complications and potential conflicts that come with contesting or challenging a will or estate disputes. We will work through all aspects of your legal matter with precision whilst endeavouring to reduce any stress or complexity.
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Challenging a Will in QLD
There is a significant difference between challenging a will and contesting a will in QLD. Below, we have outlined some of the finer details to help you gain a better understanding of this complex area of law. If you have a complicated matter to discuss, reach out and get in touch with our will dispute lawyers today.
A challenge to a Will is a challenge to the validity of the document itself. It’s usually as a consequence of:
- The Will being improperly made (ie fraud or forgery or other suspicious circumstances);
- The Will being made due to undue influence;
- The Will-maker lacking the mental capacity (also known as testamentary capacity); or
- The Will does not meet the formal requirements of the Succession Act 1981 (Qld) to constitute a valid will.
Who can challenge a will?
Typically, a challenge to a Will is usually made by a person who 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’s death occurred intestate (i.e. without a will at the time of death), a person who would stand to benefit from the deceased estate under the rules of intestacy in Queensland.
A successful challenge to the Will renders it invalid, resulting in any earlier Will or the rules of intestacy being followed thereafter to administer the deceased’s estate. 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.
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. If the Will is challenged prior to a grant of probate being issued, the responsibility of proving the Will is valid can sometimes shift to the executor seeking to propound the Will. This is why it is essential to take prompt action.
Legal Costs of Challenging a 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 to pay the Court costs of the application.
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Contesting a Will (QLD)
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 the deceased’s 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), who have grounds for contesting on the basis that the maker of the will had a moral obligation, yet failed to make appropriate or adequate provision for the claimant’s maintenance and support.
Time limits to contest a will
In Queensland, there is a time limit that any claimant must inform the executor within six months from the date of the death of the deceased by written notice. Claims must also be filed within nine 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 Supreme 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). 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).
Legal Fees for Contesting a Will
Costs in such proceedings are at the discretion of the Court, which may award costs to a successful applicant (to be paid by the estate), or unsuccessful applicants may have cost orders made against them. Generally, however, if a claim is not frivolous or vexatious, the estate will usually bear the costs of the parties to the claim.
Family Provision Claims for Contesting a Will (QLD)
Understanding Family Provision Claims
Marino Law recognises the intricate nature of family affairs, especially when it pertains to managing the assets of deceased parties.
It is a common occurrence for close kin or financial dependents to find themselves embroiled in difficulties when/if the deceased has chosen to allocate their assets or monetary resources to different parties. In this scenario, the family members or dependents may be left with minimal or no provision, causing substantial distress.
This is precisely the situation where a family provision claim becomes of paramount importance. Family provision applications may be brought even if the deceased person did not have a valid Will at the time of their death (died intestate).
Understanding the Role of the Court
It’s crucial to understand that the Court has the prerogative to take into account any disentitling conduct that might have justified the decision of the deceased (the testator) to assign little or no inheritance to a certain beneficiary.
These disqualifying behaviours may encompass serious criminal behaviour, drug or alcohol abuse, or even estrangement brought about by the claimant’s own actions.
The Legal Framework
Pursuant to the Succession Act of 1981 (Qld), the court has the authority to apportion a segment of the deceased’s estate to an eligible person. This authority remains valid even if the will does not accommodate them or provides an inadequate provision as per sections 40–44 of the Succession Act.
Lodging a Family Provision Application
The Family Provision Application is filed in the Supreme Court of Queensland. The claimant must provide an affidavit detailing their financial position, relationship with the deceased, and reasons for the claim. The Court then assesses various factors to determine whether adequate provision has been made for the claimant from the deceased’s estate, including:
- The financial circumstances of the claimant and other beneficiaries;
- The claimant’s customary standard of living;
- The nature and duration of the relationship between the claimant and the deceased;
- Any history of support provided by the deceased to the claimant;
- The total value of the deceased’s estate;
- Any promises the deceased made to the claimant regarding the division of their estate;
- Any contributions the claimant made towards the deceased’s estate;
- Any other matter the Court decides is relevant.
If a claimant can demonstrate that they have been left with inadequate provision, the Court has the discretion to make orders it considers appropriate. This can include altering the distribution of the estate to provide for the claimant in light of their needs, the size of the estate, and the needs of the other beneficiaries.
Lodging a Family Provision Application involves legal complexities, and you should seek legal advice to navigate the process effectively. If you wish to explore a family provision claim further, we are here to assist. Marino Law is dedicated to providing expert advice and guidance in such intricate legal matters.
