Contesting a Will – Understanding Family Provision Applications in Queensland
Disputes about wills often arise when a person believes they have been left out of a will, or that the provision made for them is inadequate. In Queensland, this type of claim is usually made by bringing a Family Provision Application in the Supreme Court of Queensland.
A Family Provision Application does not mean that anyone who is disappointed with a will can challenge it. The law strictly limits who can apply, when they must act, and what the Court will consider.
In Queensland, contesting a will is governed by the Succession Act 1981 (Qld). The Court may make provision from an estate where adequate provision has not been made for the proper maintenance and support of an eligible person.
For assistance with estate disputes and contesting a will you can speak with the experienced team at Miller Sockhill Lawyers or learn more about our Succession Law services.
Who Can Contest a Will in Queensland?
Not everyone can contest a will in Queensland. Eligibility is limited to particular categories of people.
Generally, a person must fall within one of the following groups:
1. Spouse
A spouse may include:
– a husband or wife;
– a de facto partner, including a same-sex de facto partner; or
– a registered civil partner.
In some circumstances, a former spouse may also be eligible, particularly where maintenance obligations existed at the time of death.
2. Child
A child may include:
– a biological child;
– an adopted child; or
– a stepchild.
Stepchildren can be eligible applicants in Queensland, but their position can depend on the particular family circumstances and the operation of the Succession Act.
3. Dependant
A dependant for the purposes of contesting a will may include a person who was wholly or substantially maintained or supported by the deceased at the time of death, and who falls within one of the recognised categories, such as:
– a parent of the deceased;
– the parent of a surviving child under 18 years of the deceased; or
– a person under 18 years who was maintained by the deceased.
This means that other relatives, such as siblings, grandchildren, nieces or nephews, are not automatically entitled to claim. They may only have standing if they can establish the necessary financial dependency.
Strict Time Limits Apply
Time limits are critical in Queensland estate disputes.
A person considering a Family Provision Application must usually take two key steps:
1. Give Written Notice Within 6 Months
The applicant must give written notice to the executor or personal representative of the estate within 6 months of the date of death.
This notice tells the estate that the person intends to make a claim.
2. File the Application Within 9 Months
The applicant must then commence the formal court application within 9 months of the date of death.
If these deadlines are missed, the executor may be able to distribute the estate, and the applicant may lose the practical ability to pursue a claim. The Court does have power to extend time, but an extension is discretionary and should not be assumed.
For this reason, anyone considering contesting a will should seek advice as early as possible. Delay can significantly affect the outcome.
What Does the Court Consider?
Being eligible to bring a claim does not automatically mean the claim will succeed.
The Court considers whether adequate provision has been made for the applicant’s proper maintenance and support. This is not simply a question of whether the will feels unfair.
The Court may consider matters such as:
– the applicant’s financial position;
– the applicant’s age, health and future needs;
– the size and nature of the estate;
– the relationship between the applicant and the deceased;
– the needs of other beneficiaries or competing claimants;
– any financial or non-financial contributions made by the applicant;
– whether the deceased had any obligations to the applicant;
– any promises or representations made by the deceased during their lifetime; and
– the applicant’s conduct, where relevant.
Each case turns on its own facts. A modest estate with several competing beneficiaries may be approached very differently from a large estate where the applicant has significant financial need.
The Role of Evidence
Evidence is central to Family Provision Applications.
A person making a claim will usually need to provide clear evidence about their financial circumstances, health, relationship with the deceased, and why the provision made for them is inadequate.
This may include:
– bank statements;
– details of income and expenses;
– medical evidence;
– evidence of debts or liabilities;
– details of housing needs;
– information about the estate; and
– evidence of the relationship with the deceased.
Executors and beneficiaries may also need evidence about the estate, the deceased’s intentions, and the competing needs of other people who have an interest in the estate.
Court Process and Mediation
Family Provision Applications are generally dealt with in the Supreme Court of Queensland.
The Queensland Courts have a Wills and Estates List designed to assist with the just, efficient and cost-effective resolution of estate proceedings. The relevant Practice Direction also aims to reduce unnecessary costs and ensure estate resources are not used disproportionately.
Many estate disputes resolve before trial, often through negotiation or mediation. This can be particularly important in family provision matters, where the legal issues are often closely tied to grief, family history and emotional conflict.
Practical Implications
For applicants, the key message is to act quickly. The 6-month and 9-month time limits should be treated as urgent.
For executors, it is important to be careful before distributing an estate where there may be a possible claim. Executors should obtain advice about their obligations, the relevant timeframes, and the risks of distributing too early.
For beneficiaries, it is important to understand that an inheritance under a will may be affected if a successful Family Provision Application is made.
Conclusion
Contesting a will in Queensland is a technical process with strict eligibility rules and strict time limits.
A Family Provision Application may be available where a spouse, child or dependant has not been adequately provided for, but each case depends on the particular facts, the size of the estate, the applicant’s needs, and the competing claims of others.
The most important step in contesting a will is to obtain advice early. Waiting too long can prejudice your position and may prevent a claim from being brought at all.
The above is general information only. If you require advice or assistance with contesting a will, defending an estate claim, or administering an estate in Queensland, contact Miller Sockhill Lawyers on 07 5444 4750.