How to Contest a Will | Top 18 Questions | 2021

How to Contest a Will? Wills disputes can arise for a number of reasons. Here are some matters you may need to review when considering contesting a Will, or even at the time of making your own Will.

What Do I Do If I Feel I Have Been Unfairly Left Out of a Will?

Contesting the Will of someone who has passed away 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.

If I Am Not Happy With the Executor of a Will, What Can I Do?

If you feel that the executor of a Will is not carrying out his or her duties properly, the executor has a conflict of interest, or is acting improperly, it may be necessary to bring an application to have the executor removed by the Court.

The Courts have wide powers to remove a personal representative/executor. However, it is in the Court’s discretion as to whether the executor is removed.

The Court will consider mismanagement of a deceased Estate and also misconduct of the executor in an application.

Who Pays My Legal Costs For Challenging a Will?

Generally speaking, 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.

Can I Contest a Will?

Will disputes come about for a number of reasons.

You may be able to contest a Will if:

  • proper provision was not made for you in the Will;
  • a promise was made to you that you would be left a certain part of the estate and that has not occurred;
  • there was a clear error or mistake in the Will and a court order is sought to rectify that that error or mistake;
  • the Will maker lacked capacity to make to Will;
  • the Will maker was subject to undue influence.

An application to the Court will be necessary to challenge a Will.

As very strict time limits apply to filing an application to contest a Will of a deceased Estate it is important that you obtain legal advice as soon as possible. Read more about how we can help you contest a Will in Queensland.

What Do You Do If the Will Is Not Fair?

If you feel that you have been unfairly left out of a Will, it is important to obtain legal advice from a lawyer who is experienced in challenging Wills of deceased Estates.

To properly contest a Will, you will need to make an application to the Court seeking an order that you are properly provided for from the Will that you are disputing.

These types of applications can often be settled in negotiations or mediation before the matter is heard by the Court, however the Court will still need to approve changes to the effect of the Will.

By Challenging 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 will set 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.

Are There Time Limits For Making a Family Provision Claim?

There are strict time limits for bringing a Family Provision Application in Queensland. We recommend taking swift 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 usually 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.

Can I Challenge a Will Based On Undue Influence?

If you feel that a person was under pressure or influence when making their Will, you may be able to contest the Will based on undue influence.

Detailed consideration will need to be given to this issue, and evidence obtained, before a Will is challenged on this basis.

Courts can however overturn a Will if undue influence has been exerted on a Will maker at the time that a Will is made.

Can I Challenge a Will Based On Incapacity?

You may be able to challenge the validity of the last Will of a deceased, on the basis that the Will maker did not have testamentary capacity at the time of making the Will.

There are a number of tests a Court will apply to determine whether a deceased had testamentary capacity at the time the Will was made.

Further, a Court may also need to review the Will maker’s medical records to assist in the process.

There may be other grounds for contesting a Will in addition to incapacity and it is important that you consider all options when you wish to dispute a Will or contest a Will.

I Was Financially Dependent On the Deceased. What Are My Options?

If you were financially dependent on someone prior to their death and have found yourself left out of their Will, then contesting a Will or disputing a Will may not be your only option.

The deceased person may have had superannuation death benefits that may be payable to relatives or anyone who was in a financially interdependent relationship with the deceased. If you were financially interdependent on the deceased, you should consider making a claim in respect of the deceased’s superannuation death benefits.

Depending on whether there is a binding death benefit nomination in place, and how the trustee of a superannuation fund intends to pay the superannuation funds, you may also need to consider lodging a family provision claim to protect your interests (for example, if the superannuation death benefits are to be paid to the personal representative of the Estate).

I’m Estranged From My Parents, Can I Claim Against Their Estate?

The relationship between a parent and a child is only one of the factors a Court considers when determining the amount to be awarded to someone who is challenging a Will or claiming against an Estate.

The Court will also consider the financial need of the parties to a Will dispute. If the child claiming against an Estate or challenging a Will is financially worse off than other siblings who were close to the deceased, then that child may have a stronger financial claim to the Estate.

In Will disputes, each case will be determined on its merits.

Can I Contest a Will After Probate Has Been Granted?

Even if Probate has been granted by a Court, you are still able to give the Executor or Personal Representative notice of your intention to contest the Will.

The usual time limits will apply. It is important that you place the Executor on notice within the time limits to ensure that your rights are protected.

This is extremely important as an Executor or Personal Representative who is placed on notice of your intention to dispute a Will, is personally liable for any distributions of the Estate made.

What Is And Isn’t Included In a Deceased Estate?

It is important that an Executor or Personal Representative considers all assets and liabilities (including taxation debts) that a deceased may have had at the time of their death so that an accurate value of the Estate can be established.

Properties owned by the deceased in their own name form part of the deceased’s Estate, however different rules may apply where properties are owned jointly with other people.

Bank accounts, shares, vehicles, memorabilia and personal items in the deceased’s own name also form part of a deceased Estate.

However, whether superannuation death benefits form part of a deceased’s Estate will depend on the trustee’s exercise of discretion or whether the deceased had a binding death benefit nomination in their superannuation fund.

Assets held in the name of a trust or a company generally do not form part of a deceased Estate, and therefore may not be liable to a claim in Queensland.

Does Superannuation Form Part of a Deceased’s Estate Monies?

This depends on whether the trustee of the deceased’s Superannuation Fund pays the superannuation death benefits to the legal personal representative of the deceased’s estate.

If this occurs, the superannuation monies form part of the estate pool and will be distributed in accordance with the Will, or if there is no Will, in accordance with the Rules of Intestacy.

The trustee of the superannuation fund may receive numerous death benefit claims from potential dependents or beneficiaries. However, in the absence of a binding death benefit nomination, the trustee may decide to either:

  • pay the benefits to the estate rather than to any claimants; or
  • pay the benefits directly to one or more of the claimants.

If you are a beneficiary under the Will and there is no binding death benefit nomination, it may therefore be important to make a claim for the superannuation death benefits to the trustee of the superannuation fund.

Another Family Member Has Lodged a Claim On A Deceased’s Superannuation. Should I Do the Same?

Yes. If you are a dependant of the deceased and a family member has lodged a claim for a deceased’s superannuation death benefits, there is no guarantee that the trustee of the superannuation fund will pay the monies to that family member (even if they are claiming the money on behalf of all family members).

The reason for this is that the trustee of the superannuation fund will look at the financial and non financial interdependency between parties, whether there is a valid binding death benefit nomination in place, and the person’s individual circumstances.

The trustee may also decide to pay the superannuation funds to the Estate.

If there is a risk of monies being paid to the Estate, you may need to consider contesting or disputing the Will in order to protect your interests.

Accordingly, depending on how you would like the monies to be paid, it is important that your claim to the Trustee of the superannuation company is prepared properly, in conjunction with your right to challenge the Will or contest the Will.

How Do I Object to a Superannuation Death Benefit Payment?

If you have been contacted by a family member, or a trustee of a deceased’s superannuation fund about a proposed payment of a deceased’s superannuation death benefits, you must read the documents carefully.

You may lose the right to bring a claim in respect of the superannuation death benefits if you sign documents agreeing to sign away any rights you have to the superannuation death benefits to another beneficiary.

If you do not agree with the proposed payment, or if you feel that you were financially dependent on the deceased, you should urgently consider objecting to the proposed superannuation death benefit payment.

It is important that an objection is prepared thoroughly so that you can properly stake your claim to the superannuation death benefits. You may also need to consider contesting the Estate or disputing the Will in order to protect your rights (in the event that you do not receive any of the superannuation death benefit payments).

Am I Eligible to Challenge a Will of a Deceased Estate?

Whether or not you can challenge a Will of a deceased Estate usually depends on how you are related to the deceased.

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

People who may be able to bring a family provision application against a deceased Estate include the deceased’s:

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

I Am the De Facto Partner of the Deceased. Am I Entitled to a Share of the Estate?

As the de facto partner of the deceased, you may be entitled to a share of the deceased’s Estate.

To determine whether you can make a claim, the Court will consider:

  • the nature and extent of your common residence (whether you lived together);
  • the length of your relationship;
  • whether or not a sexual relationship existed at some stage in the relationship;
  • whether or not you were financially dependent or interdependent on the deceased;
  • whether you jointly owned any property;
  • the degree of your mutual commitment to sharing a life together;
  • whether you both cared for any children together;
  • whether you shared household tasks and chores; and
  • whether you were known to your friends and family as a couple.

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