Contesting a Will – Will Dispute Lawyers
The passing of a loved one is a difficult and emotional time, and matters concerning their estate can further complicate the situation.
In Queensland, Australia, individuals who believe they have been unfairly treated in a deceased person’s will may have the option to contest it. This article aims to provide a comprehensive overview of the laws surrounding contesting a will in Queensland and explore the key considerations involved in such cases.
Challenging a Will vs. Contesting a Will Qld
Challenging and contesting a will Qld are two distinct legal actions related to inheritance and estate distribution.
Our team of Will Lawyers can assist you in preparing a case for either one.
Challenging a will involves questioning the document’s validity, typically on grounds such as:
- Lack of testamentary capacity
- Undue influence
- Fraud or forgery
- Improper execution
The aim is to prove that the will does not accurately represent the deceased person’s true intentions.
Challenging a will requires presenting evidence in court to seek a declaration of invalidity for some or all of its provisions.
On the other hand, contesting a will focuses on the distribution of assets and the adequacy of the provisions made in the will.
Individuals contest a will when they believe they have not been adequately provided for maintenance and support.
This is often done through family provision claims or dependency claims, highlighting the deceased person’s moral obligation to provide for the claimant. Contesting a will involves:
- Filing a legal claim.
- Presenting evidence of financial need and dependency.
- Appearing before the court to seek a more significant share of the estate.
Wills and Estates
Scenarios for Contesting a Will
Invalid Execution
The legal requirements of Queensland allow a contested will to be challenged if it has yet to be executed correctly. It may involve issues with the signing process, witnesses, or other formalities.
Lack of Testamentary Capacity
A will is valid only if the deceased understands their actions and the implications of making one.
We can help you gather evidence and present a compelling case if you believe the deceased could not make a valid will.
Undue Influence
The act of undue influence occurs when a person is pressured or coerced into making a will that does not reflect their true wishes.
Our team can help you contest a will created under such circumstances by gathering evidence and presenting a solid case.
Inadequate Provision
When a will does not provide for specific individuals adequately, they have the right to claim additional provisions from the estate.
We can guide you through contesting a will QLD based on inadequate provisions, as our team is experienced in handling such claims.
Steps to Contest a Will
Eligibility to Contest a Will
To be eligible to contest a will in Queensland, you must meet specific criteria. These include:
Eligible Applicants: The Act specifies individuals who may make a family provisions application, such as spouses (including de facto partners and registered domestic partners), children (including stepchildren and adopted children), and certain dependents.
Time Limitations: An eligible person has a limited timeframe to contest a will.
The time limit for contesting a will is generally nine months from the deceased individual’s death date.
This period is known as the “limitation period.”
It is essential for individuals considering contesting a will Qld to be aware of this strict timeframe.
You should initiate legal proceedings within the specified limitation period to avoid the claim being time-barred, meaning it cannot proceed.
Once the nine-month limitation period expires, contesting the will successfully becomes significantly more challenging. However, it’s worth noting that there may be exceptions to the limitation period in certain circumstances.
Considerations for the Court
The court considers a range of factors when determining a contested Will. Some factors include, but are not limited to:
- The financial position of the beneficiaries and claimants;
- The nature and extent of the claimant’s relationship with the Deceased;
- Did the claimant provide any support to the Deceased during their lifetime;
- Were any promises or statements made by the Deceased to the claimant about receiving a share in their estate;
- The standard of living that the claimant is familiar with;
- Any contributions the claimant made to the size of the estate; and
- Any other matter considered relevant by the court.
What Our Will Dispute Lawyers Say About the Court Process
Contesting a will Qld typically involves several stages. You may need the assistance of a Will Dispute Lawyer to assist you with this. Initially, you must file a family provision application with the Supreme Court of Queensland. The court will then review
the application and consider the circumstances of the case. All parties involved may be required to present evidence and attend hearings during the court proceedings. The court will assess the claim’s merits and decide based on the case’s circumstances.
It is important to note that the court has broad discretion when determining family provision applications, and outcomes can vary.
Who Pays the Costs of Contesting a Will Qld
In Queensland, Australia, the costs associated with contesting a will can vary depending on several factors. Generally, each party involved in the dispute is responsible for its legal costs. This means that the person contesting the will (the claimant)
will typically bear their expenses, including legal fees, court filing fees, and other related costs. However, there are situations where the court may exercise its discretion to order costs to be paid from the estate or by another party involved. For
example:
Costs Paid from the Estate: If the court determines that the deceased person’s estate should bear the costs, it may order that the expenses be paid from the assets of the estate. This usually occurs when the court finds in favour of the
claimant and considers it fair and just for the estate to cover the costs.
Costs Paid by Another Party: In some cases, the court may hold another party responsible for the costs. For instance, if the claimant successfully argues that the estate executor acted improperly or breached their duties, the court may
order the executor to pay the costs associated with the contestation. It’s important to note that the court’s cost decision is discretionary and will depend on the case’s specific circumstances. The court considers factors such as the merits of the claim,
the conduct of the parties involved, and the overall fairness of the situation when deciding on costs.
Challenging a Will in QLD: Are You Taking the Right Steps?
Contest a Will with confidence and peace of mind. At Walker Pender Lawyers, we have extensive experience navigating complex estate disputes. Our empathetic approach is paired with professional expertise to guide you through this emotional time.
How can we help you?
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