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What is involved in contesting a will?

Contesting a will (also known as family provision or further provision applications) requires proof that an eligible person has not received adequate provision for their proper maintenance and support. The circumstances that typically give rise to a claim include where:

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

Each estate dispute is unique, and depends on many factors. Generally, the Court will consider at least the following five things when determining your application:

  1. Your financial position (your financial resources including earning capacity, and your financial needs);
  2. The size and nature of the deceased estate;
  3. The relationship and the extent of your relationship with the deceased;
  4. The relationship between the deceased and the other persons who have a legitimate claim on the estate; and
  5. The financial position of the other beneficiaries.

Depending on the nature of your claim, other matters may also be relevant, which can include some or all of the following:

  1. Whether you are living with another person (i.e. your spouse) and their financial position;
  2. Your age and health;
  3. Any contributions (financial or otherwise) made to the deceased person, and provision by the deceased person for you during their lifetime or from their estate;
    Your character and conduct towards the deceased person – both before and after the date of death.

Strict time limits apply in Queensland in contesting a will and making a further provision claim, running from the date of death. Similarly, strict time-frames apply in NSW and other Australian States and Territories, which may start running from the date of death or the date of a grant of probate. To better understand and protect your rights, please contact our office to discuss your matter and arrange a free no obligation consultation.

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.

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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.