Contesting a Will & Deceased Estate Litigation Lawyers for Queensland
In Australia, the laws concerning Wills and estates are regulated on a State by State basis. However, these legal requirements and, for example, the grounds for disputing a Will or estate are very similar across the country.
Disputing a Will generally means either a person believes they have not received a sufficient share of an estate and wish to contest the Will with a family provision claim, or there are questions as to the legitimacy of a Will, and they wish to make a Will challenge as to its validity. Szabo & Associates Solicitors can provide specialist advice to those considering contesting a Will or disputing an estate in Queensland, whether living in Queensland or another State. Contact us today on 02 9281 5088 or make an online enquiry.
Contesting a Will in Queensland
A family provision claim is one where an eligible person seeks provision, or a larger provision, from an estate because they do not feel they have been adequately provided for in the Will as it stands. In Queensland, family provision claims can only be made if there is real estate property owned by the deceased in Queensland and/or the deceased was living there at the time of death.
Eligible claimants in Queensland are similar or the same as other states, such as spouses (current or former), de facto partners, children and certain types of dependents, specifically including stepchildren and parents. The Succession Act 1981 (as amended) provides detailed descriptions for a child, spouse and dependent.
The Act does not, however, provide a list of factors to be taken into account. In making its determination, the Court will consider all relevant factors, including the size and nature of the estate, the applicant’s financial position, health, age, ability to earn, their relationship with the deceased, contributions they may have made and any competing claims.
In Queensland, the time limit to make a claim for family provision is within nine months of the date of death, although the Executor can start distribution of an estate after six months, so any claim should be made before then.
Challenging the Validity of a Will in Queensland - Deceased Estate Litigation
When a person challenges a Will, they are questioning the validity of the Will itself. This usually means lodging a caveat with the Queensland Supreme Court to prevent the granting of probate (which is proof that the Will is valid). To do this, the person must have the required ‘standing’. This means they must be mentioned in the Will or an earlier version or to have been entitled to a share of the estate had the deceased died without a valid Will.
To make a successful challenge, it will be necessary to convince the Court, for example, that the deceased lacked sufficient mental capacity or was being subjected to undue influence. Alternatively, the Will itself may be suspected of being fraudulent, or there was a failure to comply with the required formalities.
if you want to challenge a Will, legal advice should be sought early, as once probate has been granted, the opportunity to make a challenge is very limited.