Contesting a will in Queensland can be an emotional and complex process, especially when family members face disagreements over an estate. If you believe the will doesn’t accurately reflect the intentions of a loved one or if you’ve been unfairly excluded, contesting may be an option to consider.
This is where experienced family lawyers can step in, providing legal insight, guiding you through the necessary steps, and helping you understand your rights and options. With their support, you can approach the process confidently and make informed decisions.
Let’s delve into everything you need to know about contesting a will and how family lawyers can assist.
Who Can Contest a Will in Queensland?
In Queensland, only certain individuals are legally eligible to contest a will. Understanding who qualifies can clarify if you have a valid claim. Below is a list of those who can contest a will in Queensland:
- Spouse: This includes legally married spouses, de facto partners, and registered civil partners.
- Children: Biological, adopted, and step-children of the deceased may contest the will.
- Dependents: Individuals who were financially dependent on the deceased, including certain extended family members.
Each category has specific requirements to meet, and consulting with a family lawyer can help determine if you’re eligible to proceed with a claim.
Legal Grounds for Contesting a Will in Queensland
To contest a will in Queensland, you must have valid legal grounds, ensuring the claim is both legitimate and within the bounds of state law. Here are the main legal grounds recognised in Queensland:
- Lack of Testamentary Capacity: The will-maker must have been of sound mind when creating the will. If they were suffering from conditions like dementia, the will’s validity may be questioned.
- Undue Influence or Coercion: If someone exerted pressure on the will-maker to alter the will in their favour, it could be grounds for contesting.
- Improper Execution: For a will to be valid in Queensland, it must meet strict legal requirements, such as being signed by the will-maker in the presence of two witnesses. Failure to meet these criteria can invalidate the will.
- Provision for Eligible Dependents: Under the Succession Act 1981 (Qld), eligible dependents (like a spouse or child) who were not adequately provided for may contest the will on grounds of inadequate provision.
Step-by-Step Process of Contesting a Will in Queensland
Contesting a will in Queensland involves several key steps that must be followed carefully to ensure the claim is valid.
Each step requires specific documents and compliance with court procedures, so working with a family lawyer can simplify the process and improve your chances of success. Here’s an outline of the typical steps involved:
1. Determine Eligibility
Confirm that you meet the legal requirements to contest the will, such as being a spouse, child, or dependent of the deceased.
2. Identify Grounds for Contesting
Establish one or more valid legal grounds, such as lack of testamentary capacity or undue influence, to support your claim.
3. Seek Legal Advice
Consult a family lawyer to assess your case, review the will, and outline the best strategy for proceeding.
4. File a Claim with the Court
Submit a formal application to the Queensland Supreme Court, providing evidence of your eligibility and grounds for contesting the will.
5. Mediation or Court Hearing
Participate in mediation, which is often required to resolve the dispute out of court. If mediation fails, the case may proceed to a court hearing.
6. Await the Court’s Decision
The court will review the evidence and issue a ruling on whether the will should be altered or upheld.
Following each step carefully can help ensure a smoother process, and having experienced legal guidance will make a significant difference in achieving a fair outcome.
Evidence Required When Contesting a Will
When contesting a will in Queensland, gathering the right evidence is essential to support your claim. Courts require thorough documentation to assess the validity of the challenge. Below is the key evidence generally required:
- Relationship to the Deceased: Proof of your relationship, such as birth certificates, marriage certificates, or proof of de facto status, to confirm eligibility.
- Financial Need or Dependency: Financial records demonstrating your income, assets, and any financial dependency on the deceased, such as bank statements or tax returns.
- Medical Records: If alleging lack of testamentary capacity, medical records showing the deceased’s mental state at the time the will was made are crucial.
- Evidence of Undue Influence or Coercion: Emails, letters, or witness statements indicating pressure placed on the will-maker to alter their wishes.
- Original or Copies of the Will: The contested will itself, along with any prior versions, helps establish changes that might support your case.
This evidence is central to establishing grounds for your claim and ensuring the court has a comprehensive view of the situation.
Time Limits and Costs for Disputing a Will
In Queensland, the timelines and costs for contesting a will are important factors to consider, as the process can be both time-sensitive and financially variable.
Timelines
- Notification Period: Within 6 months of the deceased’s death, eligible parties must notify the estate executor of their intent to contest. This initial notification period helps preserve the right to lodge a claim without causing delays in estate distribution.
- Filing Period: The formal application to contest must be filed in the Queensland Supreme Court within 9 months of the deceased’s death. If this deadline is missed, the claim might be barred, though in exceptional cases, the court may grant extensions.
These deadlines are per the Succession Act 1981 (Qld), and while extensions are rare, they may be granted under exceptional circumstances by the court.
Estimated Costs
- Mediation Costs: Mediation is often required and can range from $2,000 to $5,000 depending on the length and complexity of the dispute.
- Legal Fees: Legal fees can vary significantly. For simpler cases that settle quickly, costs might range from $5,000 to $10,000. For more complex cases that go to court, expenses can increase to $20,000 to $50,000 or more.
- Court Costs: If the case proceeds to a court hearing, additional court fees apply. These can add $1,000 to $2,000 in filing fees and other associated expenses.
In many cases, the court may order that legal fees be covered by the estate; however, this is not guaranteed and depends on the case’s merit and outcome.
How to Avoid Will Contests
Avoiding a will contest not only spares eligible people from stress but also preserves family relationships and the deceased person’s final wishes. Here are some practical tips to help minimise disputes over your estate:
Ensure Adequate Provision
Making sure that all eligible people, like children or partners, receive adequate provision in your will can reduce the likelihood of a family provision claim. This is especially important for those who depend financially on the deceased person, as they are more likely to contest if they feel inadequately provided for.
Check Mental Capacity
It’s essential to draft your will when you have full mental capacity to avoid claims challenging the will’s validity. A will made by someone with impaired mental capacity may be contested, leading to costly disputes.
Use an Experienced Lawyer
Working with an experienced lawyer can ensure your will meets all legal requirements, reducing the risk of a contest. An expert will also guide you on how to allocate real estate and other assets within your deceased estate to avoid conflicts.
Consider a Family Provision Application
In some cases, it may be helpful to consider making a family provision application in advance. This application can help ensure your intentions for providing for loved ones are clear, potentially avoiding disputes after your passing.
Plan for the Grant of Probate
Organising the grant of probate process in advance can streamline your estate’s administration. Properly structured plans and documents reduce the chance of delays, which can otherwise trigger disputes over estate assets.
Use Clear Language for Strict Time Limits
Ensure your will states any specific conditions or time frames clearly. This prevents confusion that could lead to disputes, particularly regarding the deceased estate and associated assets like real estate or digital assets.
Consider Mediation Clauses
Including a mediation process requirement in your will can encourage parties to settle disputes amicably, potentially saving legal costs and reducing the need for litigation.
By following these steps, you can create a will that minimises the chance of disputes, preserves your intentions, and reduces potential legal costs.
How Can VM Family Law Help with Will Disputes?
Contesting a will can be tough, both legally and emotionally. At VM Family Law, our experienced team provides straightforward, compassionate guidance through every step.
Whether you’re contesting, defending, or need advice on a deceased estate, we’ll assess your case, manage the paperwork, and represent you in mediation or court if needed.
With years of experience in Queensland family and estate law, we’re committed to helping you get the best possible outcome. For personalised advice, call us at 07 3447 8966 or visit our website to book a free consultation.
FAQs
Who pays the legal costs when contesting a will?
Generally, the estate may cover legal costs if the claim is successful, but claimants often bear costs if they lose.
Can adult children contest a will in Queensland?
Yes, adult children can file a family provision claim if they believe they haven’t received adequate provision.
How long do I have to contest a will after someone’s death?
Typically, you have six months from the date of death to file a claim.
Can I contest a will if I was left out entirely?
Yes, as long as you are an eligible person, you can contest the will for inadequate provision.
What happens if the deceased didn’t have testamentary capacity?
If lack of mental capacity is proven, the court may declare the will invalid.
How does mediation work in a will contest?
Mediation allows parties to negotiate a settlement outside court, often saving time and reducing costs.
Can I still contest a will after the time limit has passed?
In rare cases, the court may grant an extension, but it’s not guaranteed.
Takeaway
Will contests can be overwhelming, but understanding your options and the legal process makes a real difference.
At VM Family Law, we’re here to provide clear, supportive guidance every step of the way, ensuring your rights are protected and your voice is heard.
If you’re considering a will contest or need advice on estate matters, don’t hesitate to reach out. Call us at 07 3447 8966 or visit our website to book a free consultation and take the first step towards resolving your concerns.
