Challenging A Will – What I need to know?

Challenging a Will of a deceased Estate begins with identifying your relationship to the deceased.

If you are the deceased’s spouse, de facto, child (including stepchild) or dependent, then you may be entitled to challenge the Will.

By law, making a family provision application against a deceased Estate can include the deceased’s:

  • Spouse (including de facto partners);
  • Children (including stepchildren and legally adopted children); and
  • Dependents

How do I start the process of challenging a Will?

Challenging the Will of someone close to you is a difficult and emotional decision to make.

If you are entitled to make a claim against a deceased estate, careful consideration needs to be given to your prospects of success.

If you have been unfairly left out of a Will an application to the Court, known as a Family Provision Application, can be made on your behalf.

In this Application, you will challenge the Will and ask the Court to make an order that you are properly provided for from the deceased’s estate.

What are the time limits for making a family provision claim?

There are strict time limits for bringing a Family Provision Application in Queensland. We recommend taking early legal advice if you are considering bringing an application.

Generally, you must advise the executor of the Will of the deceased’s Estate, in writing, within 6 months from the date of the deceased’s death that you intend to make a claim.

Court proceedings must be filed within 9 months from the date of death.

If you do not comply with these time limits, you may lose your ability to bring a Family Provision Application.

In limited circumstances it is possible to bring an application out of time, but it is important that this be before the estate is distributed.

Other time limits may apply in different states.

I’ve challenged a Will, do I have to go to Court?

Most deceased Estate disputes settle outside of Court.

If you contest a Will and commence Court proceedings, the Court will set directions outlining the steps that need to be adhered to before the Court sets the matter down for a Trial.

One of these steps is usually a mediation conference where all parties to a Will dispute meet to try and resolve the dispute over the deceased’s estate.

A vast majority of claims settle at mediation. The Court is often prepared to make orders to give effect to agreements reached in mediation.

If your claim does not settle at mediation, it will be set down for Trial and the parties will need to present their opposing positions before the Court.

Who Pays My Legal Costs for Challenging a Will?

The legal costs in making a Family Provision Claim may be paid from the deceased Estate.

However, this is not always the case. If the executors of a deceased Estate do not agree to pay your legal fees for contesting a Will, you may need to apply to the Court for costs to be paid.

If you are unsuccessful in challenging a Will, the Court may order that you pay the costs of the deceased Estate. We recommend taking specific legal advice on this matter prior to commencing an application.

Do you have a question about challenging a Will?

For more information on challenging a Will in Queensland, please contact our client engagement team or call us on (07) 3252 0011 to book an appointment with one of our Wills & Estate Lawyers today.

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