Everything You Need to Know About Challenging a Will in Queensland

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It is never easy to lose a loved one, but it is even harder if you feel you are unfairly treated or neglected when it comes to their will. Challenging a will in Queensland is governed by the Succession Act 1981, which allows eligible parties to file a family provisions claim to challenge the validity of a will to contact the provision of a will or to contest the provisions of a will by making a Family Provision Application on grounds that they have not been adequately provided for in the will. Once a claim has been filed, it will reach the Supreme Court which will determine the validity of the claims.

Have you found yourself asking “how do you challenge a will” while wondering if your case is eligible to be heard? This guide has been designed to inform you of everything you need to know about challenging a will in Queensland.

If you are seeking a Queensland law firm dedicated to fighting for your rights, give us a call on 07 3808 7777, send an email to business@mclaughlinlawyers.com.au, or reach out through our online contact form.

Who is Eligible for Challenging a Will in Queensland?

To contest a will, a person must fall into one of the below categories:

  • The deceased’s spouse. (including de facto)
  • The deceased’s child (including biological, step adopted and estranged) and/or
  • A person who maintained by the deceased and who is also:
  • A parent of the deceased
  • The other parent of a surviving child under the age of 18 years of the deceased
  • A person under the age of 18 years

Spouse and child are clear definitions, with stepchildren and adopted children being eligible, while a dependant is someone who was “wholly or substantially maintained” by the deceased at the date of their death. In simpler terms, if you relied financially on the deceased at the time of their demise (and you are a parent of the deceased, the other parent of a minor child of the deceased, or a minor (under 18)), you may be eligible to file a family provisions claim.

WHEN SHOULD CHALLENGING A WILL IN QUEENSLAND OCCUR?

An eligible person should contest a will if they feel they are unfairly compensated, such as receiving far less than they believe they deserve or nothing at all. A will can also be contested if you believe the deceased was not in the right mind when making the will, or if someone unjustly influenced their decision making. Your family provisions claim must demonstrate that the deceased had a moral responsibility to you for financial support, or that the compensation you did receive was not adequate.

You must also be able to prove that your financial needs are more pressing than those of the other beneficiaries, or that the deceased’s estate can adequately compensate all parties without consequence. Before making a claim, we recommend visiting us at McLaughlin & Associates to discuss your rights and the legitimacy of your case.

Is There a Time Limit for Challenging a Will?

Beyond just considering how do you challenge a will; you should also be aware of the timeframe you must challenge within. As set out by Queensland law, if you are intending to contest the will you must first give written notice to the executor within 6 months of the deceased’s passing. From there, you must commence legal action within 9 months of the date of death.

Failure to abide by those time limits means the executor is free to distribute the assets to those nominated in the will. There is a possibility to have a challenge heard beyond this time frame, but it is at the discretion of the court. When examining a delayed challenge, the court will consider the length of the delay, the reason for the delay, and whether the estate has already been distributed.

WHAT ARE THE POTENTIAL OUTCOMES OF CHALLENGING A WILL IN QUEENSLAND?

If your family provisions claim is successful, there is no set formula that the court must follow when it comes to awarding you benefits. This means you will be awarded as much or as little as the court decides is suitable in the circumstances for your financial situation. The size of the estate and the competing claims some of the many are other factors that are considered when it comes to the amount of money you receive.

If your claim is unsuccessful, then the estate will be divided as indicated in the original will.  If the matter proceeds to trial, the court can make an order that the applicant’s cost be paid from the estate or paid personally by the application You may also be forced to pay the legal fees of the competing parties in your case.

Considering Challenging a Will?

If you are researching how do you challenge a will and have decided to take action, speak to our expert team to learn more about your rights and the validity of your claim. Our will contesting lawyers work with you throughout the entire process while fighting on your behalf to receive a fair outcome. We also represent the executors of estates whose wills have been challenged.

To learn more about our services and to begin building your case, access our online contact form, or by sending an email to business@mclaughlinlawyers.com.au, or give us a call on 07 3808 7777.