Disputing a Will

Family Provision Claims

Fortunately, Queensland law allows for family members or dependants to dispute Wills if they feel they have been overlooked or inadequately provided for in a Will. The time limit in Queensland is 9 months from the date of death to officially dispute a Will, however that is 6 months from the date of death to notify the executor of a claim, and another 3 months in which to lodge the claim in court. Only eligible people with respect to the deceased estate can contest a Will. Generally, the party wanting to contest the Will is responsible for their own legal cost.

An eligible person is someone who falls under either one of the following:

  • Spouse of the deceased person;
  • Child of the deceased person (including a step child if dependent on the testator);
  • A dependant of the deceased person.
  • A domestic partner/ de facto relationship
  • In a close personal relationship (other than marriage or de facto).

The validity of a Will may be disputed in circumstances including:

  • Family members and dependants should have adequate provision.
  • The formal requirements for making or amending a Will must have been observed.
  • The Will must genuinely reflect the Will maker’s last testamentary intentions.
  • The Will maker must have had legal and mental capacity (testamentary capacity) at the time of making it.
  • The Will must not have been the product of undue influence exerted by another person.
  • An agreement by a Will maker to provide a benefit to a person can be enforced against their entire estate if the person receiving the benefit has provided valuable consideration.
  • Each provision in a Will must precisely achieve the intention of that provision.

Other common estate disputes include:

  • Clarification of information contained in a Will
  • Missing beneficiaries
  • Issues relating to the testators mental capacity
  • Issues relating to Estate administration
  • Removal of Executors

What's involved in the process?

Most Will disputes reach settlement outside of Court. If you commence Court proceedings, there are a set of steps that need to be adhered to before the Court will set the legal matter down for a trial. One of these steps is usually a Mediation Process or Conference.

All parties are present in a Mediation Conference, which are aimed at resolving a dispute over the deceased’s estate outside of court. The Court is often prepared to make orders to give effect to agreements reached in mediation.

If the Mediation process is unsuccessful, the claim will be escalated to a trial where all parties will present their opposing positions before the Court.

Get legal advice from our Estate Lawyers

Our Wills and Estate Lawyer team in ToowoombaRoma and Warwick can assist in assessing the eligibility of the claimant and any subsequent proceedings. Given the strict time frame for applications and claims relating to Wills, we recommend you seek legal advice from our Solicitors immediately if you become a part of any dispute.

Our Wills and Estate Planning Team

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