Contesting or Challenging a Will? Here is how to get the process started.

Contesting or Challenging a Will in Queensland: Understanding the Process and Important Considerations

A Will is a legal document that provides a person’s formal directions to manage their affairs after death. If properly drafted and signed, a Will is a legally binding document that must be followed. However, in certain circumstances it is possible to alter the effect of a Will.

What Does It Mean to “Challenge” or “Contest” a Will?

When someone speaks about “challenging” or “contesting” a Will, they generally mean one of two things:

1. They question the Will’s legitimacy; or
2. They believe they should receive more than what they are given by the Will.

Eligibility to Contest or Challenge a Will

Any person who is connected to the estate may “challenge” a Will on the basis that it is invalid (for instance if the willmaker’s capacity was questionable or the Will is a forgery) and seek to have it set aside. If the court decides the Will should be set aside then the most recent previous Will takes effect instead, or if there is no previous Will the estate will be distributed according to the laws of intestacy.

To “contest” a Will on the basis of inadequate provision, you must be an “eligible person” as defined by the legislation, being either:

• The deceased’s spouse, or defacto partner;
• The deceased’s child or stepchild (of any age); or
• The deceased’s dependant.

A “dependant” is the deceased’s parent, parent of a child of the deceased, or any person under the age of 18 AND who was “wholly or substantially maintained” by the deceased person at the date of death.

Time Limits for Contesting a Will

In Queensland, there are strict time limits to contest a Will to seek a greater share of the estate:

1. Formal notice of intention to contest must be given to the executor within six months of the date of death.
2. The application must be filed in court within nine months of the date of the deceased’s death.

In certain cases, “out of time” applications can be made, but this is at the Court’s discretion.

To challenge a Will’s validity, there are generally no set time limits, however an action should be commenced as soon as possible and before the estate is administered. This is because it can be difficult, if not impossible, to reverse distributions made from the estate to innocent beneficiaries.

Grounds for Contesting or Challenging a Will

1. Questioning the Legitimacy of the Will

A person may challenge a Will’s validity on grounds such as that:

• The deceased intentionally revoked the Will after it was made;
• The deceased lacked the mental capacity to make a proper Will;
• The Will was forged or made fraudulently; or
• The deceased was unduly influenced or coerced into making the Will.

In these circumstances, the Supreme Court will examine the circumstances and declare whether or not the Will in question is genuine and valid. If a grant of probate of an invalid Will has issued, the Court can revoke that grant.

2. Inadequate Provision Under the Will

If you can demonstrate that the provision provided for you by the Will is inadequate for your proper maintenance and support you can “challenge” the Will by making a family provision application.

Family Provision Applications

The Succession Act 1981 (Qld) allows Courts to award eligible family members or dependants a portion of the deceased’s estate, if the deceased made no provision or inadequate provision for them in the Will.

Factors Considered by the Court

When assessing a family provision application, the Court considers various factors, including:

• The applicant’s financial position;
• The size and nature of the deceased’s estate;
• The relationship between the deceased and the applicant;
• Any contributions made by the applicant to the deceased’s estate;
• The applicant’s health and age; and
• Any other relevant factors.

The Process of Contesting a Will

1. Consult a solicitor: Seek advice from an experienced succession law solicitor as early as possible.
2. Consider negotiation: Before proceeding with a formal dispute, attempt to negotiate a settlement to keep the dispute out of court & save time and money.
3. Gather evidence: Collect medical records, financial documents, and any other relevant information that strengthens your case.
4. File a claim: Your solicitor will help you draft and file an application in the appropriate court.
5. Attend mediation: Most cases settle before going to trial via compulsory mediation.
6. Trial (if necessary): If mediation is unsuccessful, the matter proceeds to trial, where a judge will make a decision after comparing and testing the evidence.

The Role of the Executor

Understanding the executor’s role is crucial when contesting or challenging a Will. The particular executor, appointed by the Will to manage the deceased’s estate, can significantly impact the process.

Executor’s Responsibilities

Where a Will is contested or challenged, the executor’s role includes:

1. Defending the will’s validity if challenged;
2. Upholding the Will’s directions, if contested;
3. Representing the estate in legal proceedings; and
4. Settling disputes sensibly and commercially.

The Benefits of Mediation in Will Disputes

Before proceeding to a court hearing, mediation is often an excellent alternative and can save the parties save time and money. Mediation is compulsory in formal family provision applications, but typically optional in other estate disputes such as challenging a Will’s validity. It is very important to get proper legal advice as part of any estate or Will dispute, so speak to one of our expert wills and estate lawyers to seek guidance and determine your next steps.

Outcomes of Contesting a Will

If You Win

A successful family provision application generally results in a court order or binding deed between the parties changing how the estate assets are distributed. Success “challenging” a Will generally means inheriting more than you would have otherwise. The estate often pays all parties’ legal costs, making it easier for individuals who may not be as well off financially to fight for their fair share of an estate.

If You Lose

If you fail to provide evidence to invalidate a Will, or prove that you ought to have been given more from the estate, the Court can order you to pay your own costs, as well as the estate’s. This can mean you are liable to pay tens or even hundreds of thousands in costs.

Important Considerations

• Costs: Legal fees can be significant. Greenhalgh Pickard offers various fee arrangements, including ‘No-Win, No-Fee’, deferred payment, and a free initial consultation.
• Emotional impact: Contesting a Will can strain family relationships and even permanently damage them. Engaging experienced and empathetic solicitors can help minimise that strain and preserve family ties.
• Location: The relevant law differs significantly in every state and territory in Australia. What applies in Queensland may not apply elsewhere.
• Time sensitivity: Act quickly to ensure you meet all necessary deadlines and preserve your rights.

Get in Touch

Contesting or challenging a Will involves complex legal processes. At Greenhalgh Pickard, our team can quickly evaluate your situation and guide you through the process, increasing your chances of a successful outcome. We can help you explore all options and advise you on the potential outcomes of contesting or challenging a will. We also offer free initial consultations to help you get a better understanding of the situation, with no obligation. Get in touch today and discover how we can help you.

Greenhalgh Pickard’s Wills and Estate Lawyers Sunshine Coast

Disclaimer:

The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.