Left out of a will – what are your legal rights?

The passing of a loved one is undoubtedly a difficult time, and matters can become further complicated when someone finds themselves excluded from a will. In Queensland, as in other jurisdictions, the laws regarding wills and estates govern the distribution of assets after a person’s death. Being left out of a will can evoke various emotions and questions about legal rights and entitlements. This article aims to provide an overview of what happens when someone is left out of a will in Queensland and explores the potential avenues available to individuals in such circumstances.

Understanding the Legal Framework

In Queensland, the Succession Act 1981 sets out the legal framework concerning wills and estates. When a person dies, their estate is typically distributed according to the instructions outlined in their valid will. However, if an individual is left out of a will or believes they have not been adequately provided for, they may have recourse under certain circumstances.

Contesting a Will

1. Eligibility to Contest: The Succession Act allows eligible individuals to contest a will on various grounds, such as if they are a spouse, child (including stepchild or adopted child), or dependent of the deceased person. This means that not everyone has an automatic right to challenge a will, and the law focuses on providing for those who have a legitimate claim for further provision.

2. Time Limitations: In Queensland, there are strict time limitations for contesting a will. An eligible person must commence legal proceedings within nine months from the date of death of the deceased. It is crucial to seek legal advice promptly to understand the necessary steps and adhere to the prescribed timeline.

3. Proving Insufficient Provision: To contest a will, an individual must demonstrate that they have not received adequate provision from the deceased’s estate. The court will consider several factors, including the claimant’s financial needs, their relationship with the deceased, the size of the estate, and the deceased’s obligations to the claimant.

Potential Outcomes

1. Variation of the Will: If a court finds that the will does not make adequate provision for an eligible claimant, it has the power to vary the distribution of assets. The court may order additional provision to be made from the estate to ensure the proper maintenance and support of the claimant.

2. Mediation and Settlement: In some cases, parties may choose to resolve disputes through mediation or negotiation outside of court. This alternative dispute resolution process allows for a more amicable and cost-effective resolution, avoiding protracted litigation.

3. Legal Costs: It is essential to note that contesting a will can involve significant legal costs. Generally, the party challenging the will must bear their own legal expenses. However, the court may order costs to be paid from the estate if it deems it appropriate.

Conclusion

Seeking legal advice from an experienced estates lawyer is crucial to understand the specific circumstances and navigate the complex legal process. By taking timely action and understanding your rights, you can potentially secure a fairer distribution of the deceased’s estate while preserving relationships.

Our Wills and Estates Team is dedicated to providing you with clear and practical advice. If you have been left out of a will, we suggest you contact our Wills and Estates Team.

Our team can be contacted on 07 3808 7777 or business@mclaughlinlawyers.com.au.