In Queensland, contesting a will or defending such a contest can be a challenging and emotionally draining process. It involves challenging the content or validity of the will and requires substantial evidence to support the claim.
In Queensland, there are many grounds on which a will can be challenged. Perhaps the most common are:
The assertion of undue influence, that is the testator being inappropriately pressured into signing a document they did not really wish to sign;
The assertion of capacity, meaning that the testator did not have the mental capacity to intend to make a will or understand the nature and effect of what they were signing;
Failure to adequately provide for peoples that should reasonably have been included as a beneficiary, or included to a greater or lesser degree of entitlement.
It is important for you to understand the grounds that your will or someone else’s will may be contested. In this article, we will discuss some of these grounds, how they may apply in certain situations, and how to contest a will in Queensland.
What grounds can you contest a will in Queensland?
You might be able to contest a will if you were left out of it or if you don't believe you were adequately provided for. This is because there are laws in Queensland that operate to protect those people that perhaps should be more rightly have been provided or better provided for under the will, as determined by a court. These protections will usually only be extended to certain groups of people such as spouses or de facto partners, children (and in some cases, stepchildren), and anyone who was dependent on the deceased. In Queensland, to successfully contest a will, you must be able to show that the will is not valid or that you have other grounds on which your claim should be heard by the court.
If you are prejudiced by an issue that would give rise to invalidity of a will, then you can contest the will. An example of this would be where one child of a parent has unduly pressured the parent into signing a will that included terms which leave everything in favour of that child, leaving a second child unprovided for. Unfortunately, this is common with elderly people or those that are heavily medicated. Another example would be where someone has made a replacement will, but suffering from a mental illness could not comprehend the nature and effect of what they were signing. Perhaps the new will completely left out family members that in past wills were always included. In this instance the court may examine evidence on the mental and medical state of the deceased and on reliance of that evidence determine that the will is void.
If there are no validity issues and instead it is the case that someone has not been adequately provided for when they rightly should have, then the laws may operate to allow avenue for claim. This is usually called a family provision claim. Claims often also arise where a family member has been completely left out of a will or has been provided for on a disproportionate basis. Perhaps one of multiple children have a disability and is more reliant on the deceased for their continued health and wellbeing than the other children. In some circumstances like this, a court may find that it would be fair and just for the child with a disability to be provided for to a greater degree due to their reliance on others.
It is also very important to ensure you have valid grounds on which to advance the claim. If your claim is frivolous or vexatious then you risk not only losing but also being responsible for the legal costs of the estate you are claiming upon.
How much does it cost to contest a will in Queensland?
If you wish to contest a will, you should engage an experienced wills and estates lawyer. The cost of an estate lawyer will depend on the complexity of your case and the length of time it will take to resolve. You may also be responsible for additional expenses, such as admin, filing fees and court costs. Unless all parties have mutually agreed to an outcome then a contested estate claim will typically involve a big investment of time and is likely to cost in excess of $20,000.
How long do you have to contest a will in Qld?
If you want to challenge a will, it's important to talk to an estate planning lawyer as soon as you can following the person’s death. This is because you must start the process within a certain amount of time from the date of death and if you miss this deadline then you may not be able to contest the will at all. For example, for most family provision claims a claimant must give notice to the executors of the intention to claim within 6 months of the date of death and commence the legal proceedings within 9 months of the date of death. If you miss either of these dates then you most likely cannot oppose the will, regardless of your reasons.
If you wish to dispute a will, move quickly not only because of the time frame exemplified above but also because of other important considerations such as evidence fading or witnesses forgetting what they saw or heard due to the passage of time.
If you're unsure if you may dispute a will or how to do so, see a wills and estates lawyer. They can suggest a solution.
Conclusion
Contesting a will can be an intimidating prospect, but if you have grounds to contest it in Queensland, then it is important that you understand your rights and take action. Whether it's due to undue influence or lack of testamentary capacity, ensuring a fair and equitable outcome is what matters most. With the right estate planning lawyer and guidance, you can ensure that your loved one's final wishes are honoured and respected.
Speak with our estate planning solicitors today! Contact us for a no-obligation discussion about your situation.
Drakos & Company Solicitors
Level 1, 170 Boundary St, West End, Brisbane QLD 4101
Phone: 07 3844 1441