Contesting a Will
Gray Lawyers does not currently undertake Will dispute claims for clients. However, we are happy to provide a referral to an appropriate lawyer if you contact us with your request.
The following is a very brief overview of contesting Wills.
Why are Wills contested?
Many emotional considerations come in to play when a person passes away. And unfortunately there are many poorly drafted Wills or poorly thought out estate plans that increase the likelihood of Wills being contested.
The most common grounds for legally contesting a Will include:
- the failure of the Willmaker to adequately provide for, or to meet the expectations of, beneficiaries under the Will
- allegations of undue influence over the Willmaker at the time of preparing and signing the Will
- a lack of mental capacity of the Willmaker at the time of preparing and signing the Will
- assertions of the existence of mutual wills or a contract to make a Will that required the Willmaker to direct their assets in a way other than the final Will specifies
Who can contest a Will?
Queensland legislation determines who and under what circumstances a Will can be contested or challenged. The process is referred to as a Family Provision Application.
Application can generally be made by spouses (including de factos), children (including step and adopted children) and some dependants (dependant parents, the other parent of an under 18 child of the deceased or anyone else under 18 who was dependant on the deceased person).
How do I apply?
The application must be made to the Supreme Court of Queensland. While this process can be undertaken by individuals it is strongly recommended that you seek legal advice before proceeding.
Are there time limits?
An executor of an estate may distribute the assets of the estate 6 months from the date of death of the deceased. You should therefore notify the executor within 6 months from the date of death.
There is then a statutory limit of 9 months for lodging the application with the Supreme Court. If your application is not lodged within 9 months of the date of death your application may not be considered at all. If you intend contesting a Will you should not delay your action.
What does the Court consider?
There are four primary factors considered by the Court in determining whether an application will be successful or not:
The financial situation of the person making the application.
The size of the estate and the assets involved.
- What the relationship was like between the person applied and the deceased.
- The relationship between the deceased and other beneficiaries of the estate
A word of warning
Contesting a Will is not a "free shot". Anyone contesting a Will risks losing their case and having to pay not just their own costs but also the costs of the other parties.