Contesting a Will in Queensland may be an option if you believe you have been unjustly excluded from a Will, did not receive what you thought you were entitled to or were not given what was promised to you. Here’s what you should know about contesting a Will in Queensland.
- What kind of action do you potentially have?
- How long do you have to contest or challenge a Will?
- Who pays the legal costs?
- I’m part of a blended family, does that matter?
- Do I have to go to court?
- Do I need a lawyer?
1. What kind of action do you potentially have?
There are many different forms of Estate Litigation that will achieve a client’s outcome. But the form of litigation you can pursue will depend on the unique facts and circumstances of your situation. For example, if you’ve been left out of a Will, or been named in a Will but not received what you believe you’re entitled to, you can contest the Will, which is to submit a claim for ‘further or better provision’ from the Estate.
Although, if you believe the deceased did not have the capacity to when they made the Will, you can challenge the validity of the Will. The process of each of these varies greatly, so it’s important to gain clarity around each course of action.+
Not all of a deceased person’s belongings are considered part of their Estate. There are two main categories:
- ‘estate assets,’ which can be included in a Will, and
- ‘non-estate assets,’ which cannot.
Estate assets, as a general guideline, encompass anything that the deceased person had sole ownership of. This includes:
- Real estate, land and buildings.
- Tangible personal property such as motor vehicles, jewellery and furniture.
- Cash in any form, including savings and term deposits.
- Intangible personal property – items that cannot be physically held but possess value, such as stocks, ownership in businesses, and digital assets.
- Intellectual property, which includes patents, copyrights, and royalties.
Non-estate assets, on the other hand, are possessions that the deceased person did not have exclusive legal ownership of or held jointly with another party. Examples include:
- Assets owned jointly, whether they are real or personal property.
- Discretionary or Family Trust assets.
- Company assets.
- Life insurance policies.
- Superannuation funds.
How to get a copy of the Will
Contact the executor or estate administrator to get a copy of the Will. If this is unsuccessful, you can get an Estate Lawyer in Brisbane to do it for you.
You are entitled to obtain and inspect a certified copy of the Will if you are:
- A spouse, parent, child or dependant
- Mentioned in the Will (even if not by name)
- Mentioned in earlier Wills (even if not by name)
- Parent or guardian of a minor who falls under the above categories
- A creditor or another party that has legal claim to the estate
- A party making a family provision application
2. How long do you have to contest or challenge a Will?
In Queensland, strict time limits apply when contesting a Will:
- you must notify the executor in writing your intention to claim within six months of the date of death and;
- file your claim application and commence proceedings in court within nine months of the date of death.
Failing to meet the six-month notice deadline may result in the estate being distributed as planned, potentially leaving no assets to claim.
When challenging a Will’s validity, you must lodge a caveat in the Supreme court. In Queensland, a caveat is a legal document that can be lodged with the Titles Registry to protect an individual’s interest in a property. Once a caveat is lodged, it can prevent the property’s sale or other dealings until the dispute or issue is resolved.
There is no specific time frame but it should be done as soon as possible, before the executor obtains Probate.
Who can contest a Will?
Before you can contest a Will it is important to establish whether you are eligible or not. Under the Succession Act of 1981 (QLD) the following are eligible to contest a Will:
The deceased’s spouse — which include:
- 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
The deceased’s dependant, defined by being:
- “Substantially or wholly maintained or supported” by the deceased person at the time of their death
- A parent of the deceased
- The surviving parent of an infant child of the deceased person
- A person under the age of 18 years
3. Who pays the legal costs of challenging or contesting a Will?
Usually, a party’s legal costs are paid from the Estate. However, the Estate will generally not pay the legal fees if a claim is baseless or without merit. Taking a family claims provision to court can cost over $75,000, excluding executor expenses. However, courts prefer out-of-court negotiation, especially for small estates or weak claims.
Many individuals worry about the costs associated with contesting a Will, but often they don’t have to pay anything. Early in our free, no-obligation consultation, we will provide detailed consideration of your position and the merits of your claim before we commence proceedings – so you are fully aware of what to expect.
4. I’m part of a blended family, does that matter?
A blended family comprises a couple, their biological children from their current relationship, and children from previous relationships. This blending of families can occur due to separation or divorce or when a spouse passes away and the surviving partner enters a new relationship.
The law has recognised the rising normalcy of blended families, allowing step children to claim from their step-parents’ Estate. Given that only about half of all Australian adults have a valid Will, the risk of litigation in blended families is high and often leads to disputes. It’s crucial that you write your Will and keep it updated to reduce unnecessary heartache, stress and conflict for your family.
5. Do I have to go to court?
The short answer is no. In most cases, it’s beneficial to try and settle the dispute without going to court. However, if the party is being unreasonable, the court may need to intervene, which may result in the unreasonable party having to pay some or all of the legal costs of the other party.
Where applicable, ORG Solicitors will attempt to settle a Will Dispute without going to court, so we can minimise the legal costs (which will only diminish the Estate).
6. Do I need a lawyer?
Legally, no. However, it is a very complex and time-consuming process so it is highly recommended that you seek professional legal advice. Doing so will help alleviate unnecessary emotional stress and may save you from losing unnecessary time and money.
Book your free initial consultation today
Prompt action is crucial if you’re considering contesting a Will in Queensland. Our experienced Estate lawyers can provide detailed advice tailored to your situation.
Contact our office to discuss your case and the contesting process with our knowledgeable Estate Litigation Lawyers – we will do everything we can to provide the peace of mind you deserve.