Contesting a will

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Contesting a will

Have you been Left out of a Will?

If you believe you were entitled to more, did not receive what you were promised from a will or you believe foul play is at fault, we can help.

It is likely you have the right to make a claim against an estate.

It is very distressing to learn you have been left out of a will, or not given what you think you deserve from a will. Since 1932, O’Connor Rudy and Garrett Solicitors have helped many Brisbane, and Southeast Queenslanders challenge and contest estates so they receive what they are lawfully entitled to or what they were promised. If you are unsure if you have a case, we offer a free 20 minute phone call assessment to find out more about your personal situation. Get peace of mind by speaking to our experienced estate litigation lawyers – it is a no-obligation free call.

The Succession Act of 1981 in Queensland provides that if someone is dissatisfied with the terms of a will, or if the deceased did not have a will and someone thinks the rules of intestacy are unfair, they can apply to the Court for ‘proper maintenance and support’ from the estate. The circumstances that give rise to a claim typically include:

You have been left out of a will.
You have not received what you thought you were entitled to.
You have not received what you were promised.

Strict time limits apply in Queensland for applying for further provision from an estate. To better understand and protect your rights, please contact our office to arrange a free no obligation consultation.

Have a question?

Get in touch today

We can organise a free copy of the deceased’s will
Take advantage of our free 30 minute consultation
We can help you dispute a will and help you make a claim
Get a response within 1 business day

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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