Contesting a Will in Queensland

The distinction between what constitutes a Will and what does not can often be vague and ambiguous. In the UK 1926 case, Hodson v Barnes, a seaman etched his final wishes onto an eggshell. The inscription read: “Mag. Everything I possess. J.B.” [1] (Mag was the name of the seaman’s wife). Should an eggshell be considered a Will? On one hand, the seaman may have been joking that inside the egg was everything he possessed – that is, nothing! Alternatively, the seaman may have intended to make a Will and inscribed his final wishes onto the only material available to him.

Whether or not a ‘document’ can be considered a Will is a serious question, given that a Will determines who is entitled to a person’s property after a person dies. There are formal requirements and criteria used to determine what constitutes a Will, and a person may consider contesting the validity of a Will in Queensland if it does not meet these requirements.

There are several grounds for challenging or contesting a Will in Queensland. These grounds include where:

1. the Will does not make adequate provision for persons who might reasonably expect to receive provision from the estate;

2. the Will does not fulfill a promise that was made by the Will-maker;

3. there is an error or mistake in the Will; or

4. the Will is or ought to be declared as invalid.

Out of these 4 grounds, the 1st ground can give rise to a family provision application. Further information regarding these applications is available here:

· Family Provision Applications against a deceased estate; and

· In our article titled, “Left out of a Will for no Reason?”:

Regarding the 2nd ground, the following article suggests some possible sources of promises that could be enforced if not fulfilled: Will Making – Top issues to consider .

Regarding the 3rd ground, the following article explains a case where the Court approved an application to rectify an error in a Will.

The 4th ground can be established in circumstances where a document does not meet all the requirements of a valid Will. A document may be invalid as a Will, for example, if:

1. the document shows no intention on the part of the writer of making a Will;

2. the ‘Will maker’ did not have the capacity to make a Will at the time the document was made;

3. the document has been revoked as a Will; or

4. the document does not meet the formal requirements of a Will under the Succession Act 1981 (Qld).

This article considers some of these example in more detail below. Whether a Will is invalid will depend on all the varying circumstances of a case.

Lack of Testamentary Capacity

A person may lack capacity to make a Will because they are:

1. a minor; or

2. because they otherwise lack the mental capacity to make Will.

The minimum age for making a Will is 18. This is set out in section 9(1) of the Succession Act 1981 (Qld), which provides that a Will made by a minor is not valid. However, there are exceptions to this rule if the minor is married or making the Will in contemplation of marriage (provided that marriage takes place): sections 9(2).

Notably, there is no maximum age that a person can be when they make a Will, as “great age […] does not of itself establish want of capacity”[2]. At common law, a Will maker (or testator) must have “sound mind, memory and understanding” [3]. In the case, Read v Carmody [4], Powell JA reiterates the principles laid down in the 1870 case, Banks v Goodfellow, [5] for determining if a person has testamentary capacity:

1. The testator appreciates the legal significance of making a Will;

2. The testator is aware of the general nature, extent and value of their estate;

3. The testator is aware of those who would ordinarily have a claim on their estate; and

4. The testator can evaluate and discriminate between the respective strengths of the claims of such persons.

Importantly, the Court does have the power to make an order authorising a Will to be made (or altered) for a person who lacks or loses testamentary capacity. The following article explains a case in Queensland where the Court ordered that a Will be altered after the Will maker lost testamentary capacity: How can a person lacking testamentary capacity change their Will?

The Will has been revoked

Naturally, a Will may be revoked by a later Will or other legal document. If this occurs, the prior Will is no longer valid.

The Succession Act 1981 (Qld) also provides other instances when a Will (or part of a Will) can be revoked, which may include if the testator marries or enters into a civil partnership: sections 14 and 14A. Notably, the mere existence of a de facto relationship will not revoke a Will. Divorce and the end of a civil partnership or de facto relationship can also revoke certain dispositions in a Will.

Problems with signing and witnesses

Problems in meeting the formal requirements of the Will are generally addressed when a person applies for probate. The formalities required by the Succession Act 1981 (Qld) afford the Will maker with some protection insofar as the Will maker’s testamentary intentions are properly recorded and documented. The formal requirements also help prevent anyone from easily interfering with the Will.

The formal requirements include, for example, that a Will must be in writing and signed by the testator: section 10(2). Further, the Will maker’s signature must be made or acknowledged by the testator in the presence of at least 2 witnesses: section 10(4). At least 2 of these witnesses must also attest and sign the Will in the presence of the testator.

Notably, however, not meeting these formal requirements does not necessarily result in a document being invalid as a Will. The Court may dispense with some of the formal requirements if the Court is satisfied the person intended the document to form the person’s Will: section 18.

Do you have a question about contesting a Will?

For more information on contesting 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.

Footnotes

1 Hodson v Barnes (1926) 43 TLR 71

2 Bailey v Bailey 34 CLR 558 per Knox CJ and Stark J

3 Boughton v Knight (1873) LR 3 P& D 64

4 Read v Carmody [1998] NSWCA 182

5 Banks v Goodfellow: [1870] LR 5 QB 54

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