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
Although probate has been granted, the executor should wait at least 6 months from the time of death to distribute the estate. During this time a person can give notice and or make an application to the court for provision from the deceased’s estate. A person commonly makes an application to the court if they feel they have been unfairly treated by the terms of a will or have been left out of a will. These are valid reasons to contest or challenge a will, but time limits do apply.
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
You can challenge the validity of a will after probate has been granted if you believe the deceased didn’t have the testamentary capacity to make sound decisions at the time of signing their last will. Capacity issues can be caused by several factors such as dementia, terminal illness, and old age. If you are going to challenge a will on these terms you will require evidence of lack of capacity. This is where we can help you to build your case.
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.
If you feel you have a case and want to contest a will after probate, our estate lawyers are here to help. Established in 1928, our team has been helping our clients with the estate dispute process with a tailored approach to your case.