Losing a loved one is an emotionally challenging experience, and matters surrounding their estate can often add further complexity to an already difficult time. In Queensland, individuals who believe they have been unfairly treated in a will may have the legal right to contest it. Contesting a will is a complex process that requires a thorough understanding of the applicable laws and procedures.
- Grounds for contesting a will
- Who can contest a will?
- How to contest a will
- What happens if you are successful?
- What happens If you are unsuccessful?
Grounds for contesting a will
Contesting a will requires valid grounds that can substantiate your claim. While each case is unique, the following grounds are commonly considered in will disputes:
Lack of testamentary capacity
One of the primary grounds for contesting a will is the lack of testamentary capacity of the deceased. This refers to the deceased’s ability to understand and make informed decisions regarding the distribution of their assets at the time of making the will. Factors that may affect testamentary capacity include mental illness, dementia, or undue influence from others.
If you suspect that the deceased lacked the mental capacity to make decisions at the time of creating the will, gather any evidence that supports your claim. This can include medical records, assessments, and witness statements indicating the deceased’s mental condition during the will’s creation.
Undue influence:
Undue influence occurs when the deceased was coerced, pressured, or manipulated by another person to make decisions that are not in line with their true intentions. This ground is often invoked when there is evidence of a dominant relationship, such as a caregiver or close family member exerting control over the deceased.
If you believe that another person exerted undue influence over the deceased, gather evidence to substantiate your claim. This may include documenting instances of coercion, manipulation, or pressure that affected the deceased’s decision-making process. Witness testimonies, emails, letters, or financial transactions may also serve as evidence.
Fraud or forgery
If there is evidence to suggest that the will was forged, fraudulent, or tampered with, it provides strong grounds for contesting its validity. This can include situations where the signature of the deceased was forged, alterations were made to the will without their knowledge, or false representations were made to deceive the deceased.
If you suspect fraud or forgery in relation to the will, gather any evidence that supports your claim. This can include discrepancies in signatures, alterations in the document, or any other irregularities. Document any suspicious circumstances or incidents that suggest fraudulent activity.
Family provision claims
In Queensland, eligible individuals may also contest a will through family provision claims. This allows certain family members or dependents who were not adequately provided for in the will to seek a greater share of the deceased’s estate. The court considers factors such as financial dependency, the relationship between the deceased and the claimant, and the claimant’s financial needs.
To determine if you have a valid family provision claim, assess your relationship with the deceased and your financial circumstances. Eligible claimants typically include spouses, children (including adult children), and dependents who were not adequately provided for in the will. Consider factors such as financial need, existing obligations, and the deceased’s moral responsibilities towards you.
Who can contest a will?
Spouses and de facto partners
In Queensland, spouses and de facto partners have the right to contest a will. A spouse refers to someone legally married to the deceased, while a de facto partner refers to someone who was in a genuine domestic relationship with the deceased at the time of their death. Both spouses and de facto partners are recognised as eligible claimants and may challenge a will if they believe they have not been adequately provided for.
Children and stepchildren
Children, including adult children, and stepchildren may also have grounds to contest a will in Queensland. It is important to note that the term “child” includes biological children, adopted children, and children born outside of marriage. In cases where children feel they have not received a fair provision, they can seek legal advice and explore contesting the will.
Other dependents
Apart from spouses, de facto partners, children, and stepchildren, other dependents who were financially dependent on the deceased may also have the right to contest a will. This includes individuals who relied on the deceased for financial support and were not adequately provided for in the will. Examples of other dependents may include elderly parents, disabled adult children, or individuals who were in a caregiver relationship with the deceased.
Estranged Family
Estranged family members, such as estranged spouses, children, or other relatives, may also be eligible to contest a will. In Queensland, the status of estrangement does not necessarily disqualify an individual from contesting a will. However, the court will carefully consider the circumstances and the nature of the estrangement when evaluating the claim. The claimant will need to provide strong evidence and reasons why they should receive a share of the estate.
Time limits for contesting a will
It’s worth noting that in Queensland, there is a strict time limit for contesting a will. An eligible person must notify the estate of intention to commence legal proceedings within six months from the date of death. They must then commence proceedings and serve the estate with the application within nine months from the date of death. This timeframe emphasises the importance of taking prompt action to protect your interests and secure your rights. There however some exceptions to this time limit including:
- Delayed knowledge of the existence of the will: If you were not aware of the will’s existence until after the six-month timeframe had passed, you may still be able to contest it. However, it is crucial to act promptly once you become aware of the will.
- Fraud, forgery, or other improper conduct: If you have evidence of fraud, forgery, or other improper conduct in relation to the will, you may be able to contest it even after the six-month period has expired. The court recognizes the importance of upholding the integrity of the legal process.
- Estate not fully administered: If the estate has not been fully administered within the six-month timeframe, you may still be able to contest the will. It is essential to consult with legal professionals to understand the specific requirements and implications in such cases.
- Claim by a child born after the will was made: If you are a child of the deceased who was born after the will was made, you may still be eligible to contest the will regardless of the time limit. This provision ensures that all children are provided for, irrespective of their birth date in relation to the will.
How to contest a will
Contacting a lawyer
The first and most important step is to seek the advice of an experienced lawyer who specialises in will disputes. They will guide you through the entire process, assess the strength of your case, and provide valuable insights and strategies. A lawyer will ensure that all legal requirements are met and that your rights are protected. If you are at this stage, we’d encourage you to reach out to us here and we can help assess your specific situation.
Gathering evidence
To support your claim, gather all relevant evidence that substantiates your grounds for contesting the will. This may include documents such as the deceased’s will, medical records, financial statements, correspondence, witness statements, or any other evidence that supports your case. Your lawyer will assist you in identifying and compiling the necessary evidence.
Filing a claim with the court
Once you have engaged a lawyer and gathered the required evidence, your lawyer will assist you in preparing and filing a formal claim with the court. This claim outlines the grounds on which you are contesting the will and the relief sought. It is essential to adhere to the court’s procedures and timelines during this stage.
Attending mediation (if required)
Before proceeding to trial, parties involved in a will dispute are required to attend mediation. Mediation provides an opportunity for all parties to discuss and negotiate a resolution with the help of a neutral mediator. Your lawyer will represent your interests during the mediation process and work towards a fair settlement.
Going to trial (if necessary)
If mediation does not result in a satisfactory resolution, the matter may proceed to trial. During the trial, evidence will be presented, and both parties will have an opportunity to present their arguments before the court. Your lawyer will advocate on your behalf, presenting a strong case and protecting your interests.
Potential costs involved in contesting a will
Contesting a will in Queensland involves various costs, and it is important to be aware of them before proceeding. The potential costs may include legal fees, court filing fees, expert witness fees, mediation fees, and other associated expenses. It is worth noting that legal costs can vary depending on the complexity of the case, the amount of work involved, and the duration of the dispute.
What happens if you successfully contest a will?
If your claim is successful, it can result in significant changes to the distribution of the deceased’s estate.
The court can order that the will be varied or set aside
If your claim is successful, the court has the power to order that the will be varied or set aside. This means that the provisions of the original will may be changed or invalidated. The court will consider various factors, including your relationship with the deceased, the grounds on which you contested the will, and the overall fairness and adequacy of the provisions.
The estate will be distributed according to the new order
Once the court has made its decision, the estate will be distributed according to the new order. This may involve altering the proportions of the estate allocated to different beneficiaries, adding or removing beneficiaries, or modifying specific bequests. The court’s goal is to ensure that the distribution is fair and takes into account the circumstances and needs of the eligible claimants.
It is important to note that the court’s decision may not completely invalidate the original will. In some cases, only specific provisions may be modified, while other parts of the will may remain intact.
What happens if I am unsuccessful contesting the will?
If your claim to contest a will is unsuccessful, it is essential to be aware that you may be held liable for costs. This means that you may be required to pay the legal costs of the other parties involved in the dispute, including their lawyers’ fees and associated expenses. It is important to discuss the potential costs and risks with your lawyer before pursuing a claim to contest a will to make an informed decision.
