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Contesting a will

Contesting a will

Are you thinking about contesting a will? You should know you are empowered to take rightful legal action. Our arrangement is on a no-win, no-fee basis so call us today and we can restore justice to you — without delay and upfront cost.

We at O’Connor Rudy and Garrett Solicitors are your experienced Will and Estate lawyers in Brisbane. Since 1932, we have helped many Brisbane, and Southeast Queenslanders in contesting wills and challenging estates.

Our team will explain the estate dispute process and indicate a target date in relation to the expected resolution of your case.

You will now see a very clear and focused way forward.

How to deal with being left out of a will

After discovering you have been left out of a will you may be left reeling. This is natural and understandable.

However, whether you feel like something has gone amiss or you suspect something more intentional, it is best to work through your emotion to find a practical and fair course-of-action. 

The circumstances that give rise to a claim typically include:

  • Being left out of a will.
  • Missing out on what you thought you were entitled to.
  • Not receiving what you were promised.

Our experienced Estate Lawyers work hard so that our clients receive what they are lawfully entitled to.

Why would you contest a will? 

From our many years assisting those in this type of circumstances, we have developed a deep respect and recognition in regards to people’s motivations for contesting a will. 

What might be some reasons for contesting a will?

  • To seek what is fair, particularly in cases of undue influence
  • It is often about seeking closure, especially where the person who made the will had a ‘moral duty’ of care that has not been fulfilled
  • Sometimes it is about vindicating the rightful place of someone within the family tree that has been estranged, forgotten or ignored by no fault or intention of their own, eg. having occurred through breaches of power of attorney

If your claim is valid, you have the right to set things straight and we can help you to achieve justice. 

What are the grounds for challenging a will in QLD? 

The Succession Act of 1981 is the legislation which governs your rights in relation to challenging a will in Queensland. 

Translated into simple terms, the Act means that you have cause to dispute a will if (among other clauses): 

  • You are dissatisfied with the terms of a will
  • If the deceased did not have a will and you think the ‘rules of intestacy’ ie. the rules the govern the distribution of an Estate to the next of kin, are unfair

Our highly experienced team of Estate Lawyers can consult with you to decide whether your claim has a legal basis. This is, of course, fundamental to deciding whether you should proceed further. 

Do you need an attorney to contest a will? 

You can’t just contest a will simply because you want to. You will need to establish legal grounds, prepare evidence and go through the official channels.

This complex process requires legal counsel and representation to interpret and apply the law and to ensure your best chance of a successful result. 

How to begin the process of contesting a will: 

  • Discuss the facts of your case with our expert team at O’Connor Rudy and Garrett Solicitors
  • From here, we will guide you in preparing your evidence, this may include the details of the estate eg. financials and any facts that can prove the deceased responsibility to you
  • We will assist you in making an application to the Court, for ‘proper maintenance and support’ from the estate

To put your mind at ease, we offer a No Obligation FREE Consultation so we can walk you through the process in-depth — as it applies to your individual circumstances.

How long do I have to take action?

Strict time limits apply in Queensland for applying for further provision from an estate. Therefore, you must take legal action before too much time passes.

You stand to benefit more if you take the step to call us today. 

Overall, is it worth contesting a will?

If the expected long-term benefits of contesting a will, including the sense of solace you may feel when justice is restored, outweigh the time, effort and cost (should you win the case legal fees will be covered by your compensation amount) then you should feel confident in going ahead with the process. 

Our experienced legal team can help you weigh up your options in Estate Litigation. We are able to expertly decide the legal basis for your claim and therefore establish the likelihood of your success.

This is in order to save you costs, energy and any unnecessary emotional toll in contesting a will. 

To better understand and protect your rights, please contact our office to arrange a free no-obligation consultation today.

Have a question?

Get in touch today

  • We can organise a free copy of the deceased’s will
  • No Obligation FREE Consultation
  • We can help you dispute a will and help you make a claim
  • Get a response within 1 business day
  • We also have NO WIN NO FEE options

or give us a call
Call 07 3221 9722

FAQ’s

  • 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.
    • Former spouse (in limited circumstances).

    2. Children (which include):

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

    3. A dependent:

    The persons entitled to make a claim are, in part, dependent upon where the deceased person and their estate assets are located, and so by extension, which jurisdiction the claim is brought in.  The Succession Act 1981 (Qld) provides that the following people can make a claim against an estate in Queensland:

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

    Other jurisdictions have different categories of eligible applicants.  If you want to discuss if you are entitled to make a claim, please contact our office for a free consultation to better understand your rights and arrange a free no obligation consultation.

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

    In order for your claim to be successful, you have to prove that you have not been provided adequate provision from the estate. Estate disputes are unique and depend on many factors. Generally, the Court will consider five things when determining your application:

    • Your financial position.
    • The financial position of the other beneficiaries.
    • The size and nature of the deceased estate.
    • The totality of the relationship between yourself and the deceased.
    • 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.

  • What 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 period when filing your application, although it can be costly.

    The above details are relevant to Queensland, and different time limits apply in New South Wales, Victoria and other jurisdictions.  In order to protect your rights, please contact our office for a free consultation to discuss your rights.

  • Do I have to go to Court?

    No. The Court makes parties in an estate dispute attend mediation in an attempt to settle the claim.

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

    Generally, 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 to pay the legal costs to the estate.

    We provide a detailed analysis of your claim before commencing proceedings, so you are fully aware of your legal position.

    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 the will has been tampered with.

Have a question?

Get in touch today.

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