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How to Contest a Will in Queensland

If you feel you have been unfairly left out of a will, or you haven’t received what you thought you were entitled to in a will, or you have not received what you were promised from a will, you may have grounds to contest the will. This is what you will need to know if you want to contest a will in Queensland.

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; 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:
    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.

 

What is the time limit when contesting a will in QLD?

You have 6 months from the date of death to give notice of your intention to claim against an estate. To do this you need to give formal notice in writing to the Executor or Administrator of the estate.  Even where you have given that notice, you then are required to start court proceedings within 9 months of the deceased’s date of death. 

If you don’t give notice of your intention to claim against an estate and/or file proceeding in Court within the mentioned timeframes. The executor or administrator can distribute the estate assets to the beneficiaries listed in the will without penalty, leaving you with no assets to claim. 

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, get an estate lawyers 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

Know if you have been unfairly left out a will or inadequately provided for in a will

If you feel you have been unfairly left out of a will or inadequately provided for from a will, you need to demonstrate that the provision in the will was inadequate for your proper maintenance and support. You can do this by showing income, assets, liabilities and expenditure, as well as any medical, educational and lifestyle needs.

Who pays to contest a will?

The standard is that the estate defending the claim pays the costs of the applicant and the estate, however it is not guaranteed. Our office can discuss this with you further. 

An approximate cost for a family claims provision that goes to court can exceed $75,000 not including executors’ costs. However courts prefer negotiation out of court especially for small estates or claims that lack merit.

Often people are worried about contesting a will because of the perceived costs of doing so, but often the individual doesn’t have to pay anything. Take advantage of our FREE Claim Assessment so we can walk you through the expected costs — as it applies to your individual circumstances.

If you are considering how to contest a will in Queensland, it is critical to act fast. This way our Wills lawyers can advise in more detail based on your specific circumstances.

Call our office and one of our highly experienced estate litigation lawyers can talk through your situation and discuss the process and issues when it regards how to contest a will.

 

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

Liability limited by a scheme approved under professional standards legislation (personal Injury Work exempted).

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Need a Copy of a Will?

If you need a copy of a Will and/or are seeking legal advice, the team at O'Connor Rudy and Garrett can assist you. We will contact you to confirm additional details and then organise contacting the required parties to secure a copy of the Will for you.