Have you been adequately provided for in your loved one’s Will?

What do I do if I want to contest a Will?

The most common reasons people contest Wills in Queensland are:

  1. Being left out of the Will completely; or
  2. They have not been left a ‘fair’ share of the estate and they are seeking more from the estate.

Contesting a Will is generally done by making what is called a Family Provision Application against the estate of the deceased. In Queensland you can do this by making an application to the Supreme Court under Part IV of the Succession Act 1981.

What is a Family Provision Application?

Section 41(1) of the Succession Act sets out that if ‘adequate provision’ has not been made from the deceased’s estate for the ‘proper maintenance and support’ of the deceased’s spouse, child or dependant, the court may make such provision as the court sees fit from the deceased’s estate.

Courts tend to try and uphold testamentary freedom and only override that freedom by rewriting Wills where the Applicant demonstrates a genuine health/financial need. The court does not however, have the power to rewrite the Will on principles of fairness or justice. A Family Provision Application is not an avenue for redressing family grievances or disappointed expectations.

How to make a Family Provision Claim?

Within 6 months from the date of death of the deceased, the Applicant must notify in writing to the Executor of the deceased estate their intention to make a claim for adequate or further provision from the estate. The Applicant then has 9 months from the date of the deceased’s death to file a claim with the Supreme Court of Queensland. This is effectively putting the estate on notice that there is an intention to make a claim and prohibits the executor from distributing the estate until such time the matter has been resolved.

Before making an application to the Court for either a provision, or further provision, from the deceased’s estate consider first whether the eligibility requirements are satisfied. These are:

  1. Be an ‘eligible’ person;
  2. Have been left out of a Will or did not receive due entitlements in a Will; and
  3. Make your claim within 9 months of the date of the death of the deceased.
Who is an ‘eligible person?

An eligible person is anyone of the following:

  1. A spouse of the deceased. The meaning of spouse can include a de facto spouse;
  2. A child of the deceased. A child means, in relation to the deceased, any child, stepchild or adopted child of that person.
  3. A dependant of the deceased. This means that any person, in relation to the deceased, was being wholly or substantially maintained or supported by the deceased at the time of the deceased’s death being either a parent of the deceased, the parent of a surviving child under the age of 18 years of that deceased person or a person under the age of 18 years.
What will the Court consider?

The Courts adopt a two-stage test when considering family provision applications. The first stage is to determine whether the applicant has been adequately provided for under the Will. Adequately provided for refers to the proper level of maintenance of the applicant having regard to the financial position of the applicant, the size and nature of the estate.

The second stage is that if the Court determines that adequate provision from the estate has not been made, then what provision ought to be made. The question is whether the applicant has a genuine need, whether health or financial, in all the circumstances. Some of the things the Court considers are:

  1. Financial position of the Applicant. This means any current or ongoing financial needs.
  2. The age and health of the Applicant.
  3. Size of the estate.
  4. The relationship between the Applicant and the deceased.
  5. Any contributions made to the estate by the Applicant.
  6. Competing claims if any.
  7. Any other matter the Court considers relevant.
Who pays the fees?

Quite often family provision claims are settled during compulsory mediation and do not make it to trial. The issue of costs is generally discussed at mediation and usually the estate will pay the applicants standard costs. Should the matter proceed to trial, costs are at the discretion of the Court.

The team at Miller Sockhill Lawyers are experienced in acting for the Applicant and the Executor of the estate in these matters. If you would like more information in relation to family provision applications, please contact our office for a free 15-minute consultation.