Contesting a Will

There are many reasons why a Will may be contested.  You may feel that the Executor of the Will is not undertaking their duties in a proper manner.  Perhaps the Executor has a conflict of interest or lacks capacity.

You may feel that you have been unfairly provided for in the Will or perhaps not provided for at all.

What can I do? 

You should obtain legal advice sooner rather than later.

Contesting a Will will require an Application to the Court.  However, the matter can often be settled at a Mediation or Settlement Conference before the matter is heard by the Judge.

Because of the nature of these matters the Court will generally still need to sanction or approve any settlement reached between you and the Executor which changes or affects the Will.

Time limits

Time limits apply.  You must give the Executor written notice that you intend to make a claim within six (6) months from the date the person whose Will you are contesting passed away.

Except under very special circumstances you must file your claim for provision with the Court within nine (9) months from the date of death.

If you miss these time limits, then your eligibility to bring a claim for provision out of the Estate would be lost, except in very limited circumstances where it may be possible to make an application out of time as long as the Estate has not been distributed.

These time limits apply in Queensland and may be different in other parts of Australia.

How do I know if I am eligible to contest a Will?

This will depend on your relationship with the deceased.

Generally, persons who may contest a Will include the deceased’s spouse, de facto partner, children including step children and adopted children and dependents.

What factors will the Court take into account?

Each case will be decided on its merits and the facts and circumstances of the case.  However generally the Court will consider the following matters:  

De facto partner 

• The length of the relationship;
• Whether the relationship included a sexual relationship;
• Whether you held yourself out to and were known as a couple to friends, family and the world at large;
• Whether you care for or raised children together;
• The extent of your commitment to each other;
• Whether you lived together;
• Whether you owned property together;
• Whether you had a financial dependence on the deceased.

Spouse

In most circumstances the spouse of a deceased person will be eligible to make a claim for provision out of the deceased Estate particularly if the spouse was financially dependent upon the deceased.

Children

All too often a child is left out of a Will because of an estranged relationship with their parent.  This relationship between a parent and child is a factor which the Court will consider when determining a Family Provision Claim by a child.

The Court will also consider the financial need of the child and if the child is in financial distress or financially in a worse position than other beneficiaries or siblings, then that child may be awarded provision out of the Estate.

Costs

In general terms, the legal costs for a Family Provision Claim may be paid from the Estate.  However, this is not always the case.  If your claim is unsuccessful the Court may order that you pay the costs.

Advice

If you are thinking about contesting a Will, we recommend that you obtain legal advice as soon as possible.  Contact our office to arrange an appointment.

This document offers general information only and should not be relied upon as legal advice under any circumstance.  Please contact your solicitor for clarification on any areas.