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CONTESTING A WILL IN QUEENSLAND

The death of a family member can be a highly emotional time. A dispute against the last Will of the deceased can make things even more problematic.

If you have been unfairly left out of a Will or left with an unfair share of the deceased’s estate, you may be eligible to contest the deceased’s Will.

In Queensland, these claims are legally referred to as “Family Provision Applications”.

At Craven Lawyers, our experienced will dispute lawyers are here to guide you through the process of contesting a Will to the best possible outcome. If you need help to ensure you receive what you are entitled to call us today on (07) 3172 7100 for your free initial consultation.

No Win, No Fee

At Craven Lawyers we believe that the Australian legal system should be accessible to all Australians, regardless of their bank balance.  That’s why we offer a “No Win, No Fee” arrangement to approved family provision applicants.  

To apply call us today on (07) 3172 7100.

Free Consultation

Call us today on (07) 3172 7100 for your free confidential consultation with one of our family provision application lawyers.  

I have been unfairly left out of a Will or left an unfair share of an estate,

what can I do?

To successfully contest a Will, you must be able to prove that:

  • you are an eligible applicant; and
  • you have been left without adequate provision for your proper maintenance and support out of the deceased’s estate.

The Court, in determining if you have been left without adequate provision, will consider a range of factors including:

  • your financial circumstances;
  • your age and state of health;
  • the financial circumstances of other potential applicants and/or beneficiaries of the estate;
  • the size and nature of the deceased’s estate;
  • the nature and extent of your relationship with the deceased;
  • your support of the deceased during their lifetime;
  • the relationship between the deceased and other persons with a legitimate claim on the estate;
  • your contributions to assist in the building up of the deceased’s estate;
  • any other matter the Court considers relevant.

Determining what provision should be made to you out of the deceased’s estate is an inexact science. What constitutes “adequate provision” will vary from case to case. If decided by the Court, the Judge hearing your application will retain complete discretion about what weight to attribute to each of the factors mentioned above which are relevant to your case.

We recommend that you seek legal advice from our experienced will dispute lawyers about your specific rights and entitlements.

Am I eligible to contest a Will in Queensland?

Section 41 of the Succession Act 1981 (Qld) stipulates that only certain persons are eligible to contest a Will in Queensland. A person will be an eligible Family Provision applicant if they fall into one of the following categories:

  • The deceased’s spouse (which includes a de facto spouse and/or former dependent spouse);
  • The deceased’s child (which includes a step-child or legally adopted child); and/or
  • A person financially dependent on the deceased at the time of his/her death.

How long do I have to contest a Will in Queensland?

The law about contesting a Will varies in each State and Territory of Australia. Consequently, different time limits apply depending on which State or Territory your claim is commenced in.

In Queensland, two vital time limits apply when contesting a Will.

Firstly, a person seeking to contest a Will in Queensland must notify the Executor (or Administrator) of the deceased’s estate within 6 months from the date of the deceased’s death of their intention to commence a Family Provision Application.

An Executor who has not received written notice of any potential Family Provision claim against the deceased’s estate by this time can then commence distributing the assets of the estate.

Secondly, a person seeking to commence a Family Provision Application must file an Application in the Court within 9 months from the date of the deceased’s death.

In some circumstances, the Court will agree to a Family Provision Application being commenced “out of time”. However, this is entirely at the discretion of the Court.

What is the process of contesting a Will in Queensland?

If you intend to contest a Will in Queensland, you should immediately give written notice of your claim to the Executor of the estate. You should also obtain a copy of the deceased’s Death Certificate and last Will.

It is also important to obtain a schedule of the assets and liabilities that comprise the deceased estate.

Your Application will need to be filed in the Court within 9 months from the date of death of the deceased. Both the District Court and Supreme Court have jurisdiction to hear Family Provision Applications. Our will dispute lawyers will assess your claim and determine which Court your Application should be filed in.

Once your Application has been filed, it is likely that your claim will proceed to mediation. Mediation is essentially a structured negotiation process. An independent and impartial person, often a barrister who has experience with contested will claims, will conduct the mediation. All parties and their legal representatives should attend and participate in the mediation process.

In our experience, many Family Provision Applications are resolved through negotiations conducted at mediation. However, should mediation be unsuccessful our experienced will dispute lawyers have the skills required to pursue your claim to a final hearing if necessary.

For more information about how to protect your rights, book your free initial consultation by calling Craven Lawyers Now on (07) 3172 7100

 

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Queensland Law Society

 

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