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Contesting a will – who is eligible?

Contesting a will – who is eligible?

Can anyone dispute a will?  What categories of persons can contest a will?

Naturally, when it comes to any legal question, there is no simple answer that can be given to some of the most common questions.  The question of who has the right to try and contest the terms of a will depend ultimately on a number of factors, the most important of which are:

  1. The ‘domicile’ of the deceased person (i.e. the place that the deceased person considered ‘home’); and
  2. The location of the deceased person’s estate and assets.

This is important because each State and Territory of Australia has different criteria as to who is an eligible further provision applicant, and is able to contest the will of the deceased person.  The location of the deceased person and their estate is important because it determines the laws applicable to the matter, and the proper place for it to be determined.  As an extreme example, a South Australian court is hardly the appropriate place to determine further provision for a deceased Queenslander, whose assets were all based in Queensland – in those circumstances, the appropriate laws and courts would be Queensland’s.

Within Queensland, the eligible categories are specified in the Succession Act 1981, under Part 4 – Family Provision.  Those categories are:

The Deceased’s Spouse
Under Queensland succession law, a spouse can seek further provision from the estate of their deceased spouse.  “Spouse” includes:

  • The husband or wife of the deceased person;
  • The de facto partner of the deceased person; and
  • The registered partner of the deceased person.

Additionally, there can be more than one spouse for a deceased person – for example, it is possible for a person to be in a de facto relationship with a partner, whilst remaining married to another person.

The Deceased’s Child
Queensland enables the child of a deceased person to contest the will and seek further provision.  Child is not limited to biological children, but includes all of the following:

Natural (biological) children;
Adopted children; and

A deceased person’s children within the above categories are eligible to seek further provision from their estate, but the parent-child relationship alone does not mean that a claim will be successful – our estate litigation lawyers will consider all relevant factors in considering and advising you on the merits of your potential family provision claim.

The Deceased’s Dependant
The Succession Act 1981 (Qld) also permits a ‘dependant’ of the deceased person to seek further provision from the estate.  To be a dependant, the claimant must be:

  1. “wholly or substantially maintained or supported” by the deceased person at the time of their death; and
  2. Also, be either:
    1. A parent of the deceased;
    2. The surviving parent of an infant child of the deceased person; or
    3. A person under the age of 18 years.

There are also specific timeframes within which your further provision claim must be notified to the executors, and filed with the court.  If you are considering contesting a will, our lawyers are able to advise in more detail based on your specific circumstances.

The above information relates to Queensland, but our lawyers also have experience with and can advise on family provision matters in other Australian States and Territories.  Please contact us to discuss your potential claim.

Written by Thomas Ashton – Senior Associate