If you have been left with inadequate provision from a deceased’s estate, understanding your rights is the first step toward a resolution. This guide explains the legal grounds, the strict time limits, and the legal process involved in making a family provision claim in Queensland.

What Does it Mean to Contest a Will?

In Queensland, there is a distinct difference between challenging a will’s validity and contesting its provisions. While challenging a will involves arguing the document itself is invalid (due to undue influence or lack of testamentary capacity), contesting a will in Queensland typically refers to a Family Provision Application (FPA).

When you contest a will in QLD, you are asking the Supreme Court to redistribute the estate assets because the deceased failed to make adequate provision for your proper maintenance and support. This does not necessarily mean the will is “wrong,” but rather that it fails to meet the legal standards of care required under Queensland law.

Who is an Eligible Person to Contest a Will in QLD?

You cannot contest a will in QLD simply because you feel slighted or believe the distribution is unfair. To make a family provision claim, you must be an eligible person. Under the Succession Act, eligibility is limited to three main categories:

1. The Deceased’s Spouse

This includes a husband or wife, a registered partner, or a de facto partner. To qualify as a de facto partner, you must generally have been living with the deceased on a genuine domestic basis for at least two years ending on the deceased’s death.

2. Children

This category is broad and includes a biological child, an adopted child, or a stepchild. It also extends to an unborn child.

3. Dependants

A person may be an eligible applicant if they were being wholly or substantially maintained or supported by the deceased at the date of death and are:

• A parent of the deceased;
• The other parent of a surviving child of the deceased under 18; or
• Any person under the age of 18.

If you are unsure of your status, you should seek legal advice immediately to determine if you meet the criteria for financial dependence.

Valid Grounds for Contesting a Will in QLD

To successfully contest a will in QLD, the applicant must prove two things to the Court:

• The deceased failed to make adequate provision for the applicant’s proper maintenance and support.
• The Court should exercise its discretion to make an order for further provision from the estate.

The primary grounds for these claims often centre on the applicant’s relationship with the deceased and their current and future financial needs. The Court decides each case on its own merits, considering several relevant factors.

Factors the Court Considers

When a family provision application is filed, the Supreme Court will look at:

• The size and nature of the deceased’s estate.
• The financial position and needs of the applicant.
• The needs of other beneficiaries and competing claims from other family members.
• The relationship with the deceased (including any history of estrangement).
• Any contributions made by the applicant to the deceased’s wealth or welfare.
• Whether the applicant is financially dependent on the estate.

The Process: How to Contest a Will QLD

The legal process for a family provision claim involves several stages, moving from gathering evidence to mediation, and finally, a court hearing if the matter cannot be settled.

1. Initial Assessment and Legal Advice

The first step is to obtain expert legal advice. Our estate lawyers will review the will, the size of the estate, and your personal circumstances to determine if you have valid grounds.

2. Written Notice to the Executor

You must provide written notice to the executor of your intention to make a family provision claim. This is a critical step to prevent the executor from distributing the estate before your claim is heard.

3. Gathering Evidence

A successful claim requires robust evidence. This may include financial documents, witness statements, and, in some cases, medical records if the applicant’s health affects their future needs.

4. Dispute Resolution and Mediation

The Supreme Court requires parties to engage in dispute resolution before a matter goes to trial. Most claims are settled during mediation, which helps manage legal costs and avoids the stress of a public trial.

5. Court Grants and Orders

If mediation fails, the matter proceeds to a hearing. If the court decides in your favour, it can award family members a specific portion of the estate or a lump sum payment.

Critical Time Limits: How Long Do I Have to Contest a Will?

Strict time limits apply when contesting a will in Queensland. Missing these deadlines can result in you losing your right to claim entirely.

• Six Months: You must provide written notice of your intended claim to the executor within six months of the date of death.
• Nine Months: You must formally file your family provision application in the Supreme Court within nine months of the date of death.

While the Court has the discretion to hear “out of time” applications, this is rare and requires an exceptional reason. If the deceased died intestate (without a will), these same strict time limits still apply to claims against the statutory distribution of the estate.

Challenging the Will’s Validity

In some cases, the issue is not inadequate provision, but that the will itself is a product of foul play or incapacity. Legal challenges to a will’s validity are usually based on:

• Mental Capacity: The person believes the deceased suffered from mental illness or dementia and lacked the testamentary capacity to understand what they were signing.
• Undue Influence: The deceased was under significant pressure or coercion from another person.
• Improper Execution: The will was not witnessed or signed correctly according to Queensland law.

If successful, the Court may set aside the current will in favour of a previous one or declare that the deceased died intestate.

Legal Fees and Costs

One of the most common concerns for those looking to contest a will in Queensland is the cost. In many successful family provision cases, the Court may order that the applicant’s legal fees be paid out of the deceased’s estate. However, this is not guaranteed. If a claim is deemed frivolous or vexatious, the applicant may be ordered to pay their own legal costs and potentially the estate’s costs. Obtaining professional guidance early is the best way to manage these risks.

Why Choose Rose Litigation Lawyers

Rose Litigation Lawyers act frequently in wills and estate litigation matters, including family provision claims. Our solicitors are experienced in these matters and can provide you with direct, honest and commercial advice about your prospects on commencing, or defending any such action. Our firm understands that there are often sensitive personal matters at play in litigation of this nature, and we can provide you with the guidance and support required during this time.

Whether you are a surviving child who has been unfairly excluded or a deceased’s spouse left in a precarious financial position, our team of estate lawyers are here to provide the professional advice you need.

Contact Us Today

Do not let the strict time limits expire. If you believe you have not been adequately provided for, contact Rose Litigation Lawyers today for an obligation-free consultation.

The content of this publication is intended to provide a summary and commentary only. It is not intended to be comprehensive nor does it constitute legal advice, and has been prepared based on applicable legislation and case authority at the date of publication. You should seek legal advice on specific circumstances before taking any action.