Do you think you have the grounds to challenge a Will?

Do you think you have the grounds to challenge a Will?

The Succession Act 1991 in Queensland provides that if someone is dissatisfied with the terms of a Will, or if the deceased did not have a Will and someone thinks the rules of intestacy are unfair, they can apply to the Court for ‘proper maintenance and support’ from the estate. The circumstances that typically give rise to a claim include:

  • You have been left out of a Will.
  • You have not received what you thought you were entitled to.
  • You have not received what you were promised.

Other forms of estate disputes arise out of the following circumstances:

  • The deceased did not have capacity when they signed their Will.
  • The deceased did not make their Will of their own free will.
  • You believe that the Will has been tampered with.

Strict time limits in Queensland apply for requesting further provision from an estate. To better understand and protect your rights, please contact our office to arrange a free no obligation consultation.

Here are some frequently asked questions that may help you with your enquiry:

Who is entitled to make a claim?

Not ‘anyone’ can make a claim for proper maintenance and support. The Succession Act provides the following people can make a claim against the estate.
1. Spouse (which includes):

  • Legally married couples.
  • De facto couples.
  • Same-sex couples.
  • Registered partnerships.
  • A former spouse (in limited circumstances).

2. Children (which include):

  • Biological children.
  • Stepchild children.
  • Adopted Children.

3. A dependent:
Which means any person who was wholly or substantially maintained by the deceased person at the time of the deceased’s death. These people may include:

  • A parent of the deceased.
  • A grandchild of the deceased.
  • A parent of a surviving child, under the age of 18, of the deceased person.
  • A person under the age of eighteen.

 

If you want to discuss your entitlements to make a claim and better understand your rights, please contact our office for a free consultation.

What do I have to prove for my claim to be successful?

For your claim to be successful, you have to prove that you have not been adequately provided for in the estate. Estate disputes are unique and depend on many factors. The Court will consider five things when determining your application:

  1. Your financial position.
  2. The financial position of the other beneficiaries.
  3. The size and nature of the deceased estate.
  4. The totality of the relationship between yourself and the deceased.
  5. The relationship between the deceased and the other persons who have a legitimate claim on the estate.

 

Each case is determined on its own unique set of factual circumstances. In order to discuss your entitlement, please contact us for a free consultation.

Do time limits apply if you want to bring an application against an estate?

Strict time limits apply in making an application for further and better provisions from a deceased estate. In Queensland, you have six months from the date of death to notify the executor of the estate you intend to bring an application for proper support and maintenance from an estate. You have nine months from the date of death to file your application in Court.

The Court has the discretion to extend the time periods when filing your application, although it can be costly. To protect your rights and discuss your entitlement, please contact our office for a free consultation.

Do I have to go to Court?

No. The Court makes parties to an estate dispute attend mediation in an attempt to settle the claim. Most claims settle at mediation, although if it cannot be resolved, the matter will proceed to trial.

Who pays my legal costs for bringing an application or challenging a Will?

The legal costs of challenging a Will are paid directly from the estate. In respect to an unsuccessful claim, in some instances, the Court has ordered the unsuccessful party to pay the legal costs to the estate.

To ensure that you are fully aware of your legal position, we provide a detailed analysis of your claim before commencing proceedings.

Written by Christopher O’Connor, Partner