Contesting a Will Qld

There are 3 classes of people who are entitled to contest a Will in Queensland which is stated in Section 41 of the Succession Act 1981 (Qld) being a Spouse/s, Child/Children (including Step Child/Children and Adopted Child/Children) or Dependant/s.

Challenging a Will

Contesting a Will is different to challenging a Will. When you are contesting a Will, you are claiming that adequate provision has not been made for you from the Estate for the proper maintenance and support. An example of contesting a Will is a child being left out of a Will or receiving a lesser share than another child/children. If you are challenging a Will, the Will itself and circumstances surrounding the Will are the issue. An example of challenging a Will might be where you have suspicions around the making of the Will – Testator not having capacity or Testator being pressured into making the Will.

Time limits apply for contesting a Will. If you satisfy one of the above classes of people, you must provide written notice to the Executor or Solicitor administering the Estate within 6 months from the date of death. You must also commence Court Proceedings for said claim within 9 months from the date of death. In certain cases, “out of time” applications can be made.

Considerations for the Court

The Court considers a range of factors when determining a contested Will. Some factors are but not limited to:

1. The financial position of the beneficiaries and claimants;
2. The nature and extent of the claimants relationship with the Deceased;
3. Did the claimant provide any support to the Deceased during their lifetime;
4. Were any promises or statements made by the Deceased to the claimant about receiving a share in their Estate;
5. The standard of living that the claimant is familiar with;
6. Any contributions the claimant made to the size of the Estate; and
7. Any other matter considered relevant by the Court.

Next Steps

If you have a matter where this might be relevant to you that you wish to pursue, please contact our Estate Litigation expert Laurisa Jackson  to discuss your matter!