Disputing or Contesting a Will in Queensland

Ways a Will can be disputed

There are many ways a will or deceased estate can be disputed or contested. A person’s Will can be challenged or disputed if:

• the will maker was influenced by others at the time of will making,
• the will maker was lacking the mental capacity at the time
• there are suspicious circumstances surrounding the will makers signing of the will.

There are limitations on who may challenge a will – if you have any questions – contact us. There are also strict time limits in making a claim against a will. A claim must be made within 9 months from the date of the grant of Probate. There is also a 6 month time limit (from date of death in Queensland) to seek a correction of a will.

We can assist you with explaining these rules as each case is different. Importantly, do not delay your inquiry as a delay could mean you lose your rights under the law. Further, each State has different rules – so if your matter involves assets in another State, call us to inquire.

Family Provision Application

The court is allowed to intervene where a certain person is excluded from a will. If a family member, or dependant feels that they have been excluded or not properly provided for, they may (subject to certain limitation) file a Family Provision application and contest the Will.

A Family Provision application is one of the most common ways for a will or deceased estate to be challenged. Only a spouse or de-facto spouse, children including step and estranged and dependants can make a claim under the family provision application.

Family Provision application are made under Part IV of the Succession Act 1981 (QLD). Section 41 on the Act sets out the relevant principles that a court will take into account when deciding a Family Provision application.

1) If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

1A) However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.

A Family Provisions Application does not always mean the challenger is successful, the court orders may vary and can “refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.”

There are other factors that the court will consider in this situation, however it is best to give our friendly team at George Lawyers a call to discuss your individual circumstances.

Mediation for Will Disputes

The death of a loved one and the added stress of a will dispute can be an extremely difficult time for everyone involved, especially if there are multiple parties involved. In these cases, a mediator is often needed to help with a resolution process.

Mediators’ role is to guide the parties towards a resolution, through clearly understanding each person’s position and their end goals. This can be done through joint sessions and separate side sessions between client and lawyer and with parties, as well as open discussions. George Lawyers can help you through the mediation process and ultimately find a resolution that works for everyone involved.