Many people assume that once probate has been granted, you can no longer contest or challenge a will. However, in Queensland, that isn’t always the case. Even after obtaining probate, you may still have legal options if you believe the will is unfair, invalid, or the estate was mishandled.
This blog explains the grounds for contesting a will after probate is granted, what happens if you succeed, and why acting quickly is crucial.
What is probate?
A grant of probate is an order of the Supreme Court of Queensland that validates a deceased person’s will. This is done by identifying the person, also known as the executor of that will and granting them permission to administer the estate.
But a commonly asked question is “Can I still contest a will even if Probate has been granted?” The short answer is yes even if probate is granted, you can still challenge the validity of the will on the grounds that the deceased did not have capacity when they signed the will.
How long do you have to wait
Even if probate has been granted, an executor in Queensland should not rush to distribute the estate. By law, they are expected to wait at least 6 months from the date of death before finalising the distribution.
This waiting period exists because it allows eligible people to:
- Give notice of their intention to make a claim, and/or
- File an application with the court for further provision from the estate.
Applications are usually made when someone believes they have been unfairly treated under the Will or left out altogether. These are valid reasons to contest or challenge a will, but time limits do apply. If you miss the deadline, your rights may be lost and the estate could already be distributed.
Grounds for Contesting a Will
Unfairly treated or left out of a will
If you were promised more from a will than what you were left after the death of a loved one you do have grounds to contest the will. But before you can contest the will you need to find out if you are eligible to do so. Eligible people are:
The deceased’s spouse — which includes:
- Legally married couples
- De Facto couples
- Same-sex couples
- Registered partnerships
- A former spouse (in limited circumstances)
The deceased’s children including all of the following:
- Natural (biological) children;
- Adopted children; and
- Stepchildren
The deceased’s dependant; to be a dependant, the claimant must be:
- “substantially or wholly maintained or supported” by the deceased person at the time of their death; and
- be either:
- A parent of the deceased;
- The surviving parent of an infant child of the deceased person; or
- A person under the age of 18 years
Once eligibility has been established, you can make an application to the Supreme Court of Queensland to contest the will.
Capacity Issues
For a Will to be valid, the person making it (the testator) must have had the mental capacity to understand what they were signing. Conditions like dementia, Alzheimer’s, or severe illness may mean the testator did not fully comprehend:
- The nature and effect of the Will
- The extent of their assets
- The claims of those who might reasonably expect to benefit
If you can show that the testator lacked this understanding at the time the Will was made, the court may declare the Will invalid.
With capacity issues, we also see elder abuse issues or coercion. This is the case when someone has been taken advantage of because of their ill health or old age or threatened to change a will to suit the aggressor. If you suspect this has occurred, it is important to right the wrong. Read more about mental capacity here.
Undue Influence
If the Will-maker was pressured, coerced, or manipulated into signing the document, it may not reflect their true wishes. This can be subtle, such as isolating the person from family, or more direct, like threatening to withdraw care or support.
Fraud or Forgery
If a Will has been tampered with, falsified, or forged, it may be contested. Fraud may involve tricking the testator into signing a document without realising it was a Will, or altering the Will after it was signed.
Failure to Comply with Legal Requirements
In Queensland, a valid Will must be in writing, signed by the testator, and witnessed by two people. If these requirements weren’t met, the court may find the Will invalid, even if probate has already been granted.
What happens if you win your case?
If your challenge is successful under the Succession Act 1981 (Qld), the court may:
- order that a new distribution of the estate be made (for family provision claims);
- declare the will invalid, meaning an earlier will may apply, or the estate may be distributed under intestacy laws;
- rectify or amend the will to better reflect the deceased’s intentions.
The outcome depends on the type of challenge, but the key point is that probate does not always make the will untouchable.
Challenging or Contesting a Will? Act Fast!
Challenging or contesting a will after probate is possible in Queensland, but strict time limits apply. The longer you wait, the harder it becomes to protect your rights and secure your fair share of the estate.
If you believe a will is unfair or invalid, don’t delay. Contact ORG Law today to discuss your options and get trusted advice on the next steps.
