In Queensland you can contest a will if you are an eligible person and you believe that you have been left without adequate provision for your proper maintenance and support. An eligible person includes:
- A child (including unborn child); or stepchild; or adopted child.
- The husband or wife of the deceased; or the de facto partner of the deceased; or the registered partner of the deceased; or the former husband, wife or registered partner of the deceased.
- A dependent parent of the deceased; or the parent of a surviving child under the age of 18 years of that deceased person; or a dependent person under the age of 18 years.
In Queensland the time limits are six (6) months from the date of death to notify the executor, and nine (9) months from the date of death of the deceased to file the family provision application. If you are an eligible person, and you are within time, then you can contest a will in Queensland by making a family provision application.
The Court will consider the following factors:
- Has adequate provision been made for the claimant?
- What provision should be made for the claimant (if any)?
In certain cases, “out of time” applications can be made, however this is at the discretion of the Court. The Court will consider a number of things when determining an out of time application including, the length of the delay; the reason for delay; whether the estate has been distributed; and whether there has been any unconscionable conduct.
The Court evaluates a Family Provision Claim against established criteria. One of the most important factors in this type of case is the financial need of the claimant. In order for the Court to decide whether a claimant has received adequate provision, the claimant must produce compelling factual evidence of their financial circumstances. It is very difficult to define “adequate provision” and what this amounts to varies from case to case. In Queensland, a Court may take various matters into consideration in determining whether to make a family provision order
Given the number of factors involved in these cases, it is very important to seek legal advice at an early point in the proceedings. If you are considering contesting a will in Queensland, contact our team for specialist advice about all aspects of the process, including your prospects of success, the likely duration of proceedings and costs involved.
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.
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