What Does it Mean to Contest a Will?

Unlike challenging a will, contesting a will means that the person objecting believes that the deceased has not made adequate provision for their proper maintenance and support. Exactly what is an ‘adequate provision’ will depend on the circumstances. Oftentimes, a person is left out of the will – although a person can contest a Will if they have not been left enough of the estate.

The process of contesting a will must be made by way of a Family Provision Application. To contest a will, the person doing so (the applicant) must be an eligible person to make the Family Provision Application. Eligible people include a spouse, child or dependant of the deceased. The definition of ‘eligible person’ is broader than most people believe.¬†

For example:

– spouse includes de facto partners;

– child includes step-child, adopted child; and adult child;

– dependant can include anyone who is being ‘wholly or substantially’ supported by the deceased at the time of death and who is a parent of the deceased, the parent of a surviving child under the age of 18 of the deceased or a person under the age of 18 years.

After determining that an applicant is an eligible person, the court will consider the relationship of the applicant and the deceased, the support that the deceased provided to the applicant in their lifetime. Consideration will also be given to the applicant’s health, financial position, relationship with the will-maker and weigh those factors against the size of the estate, the wishes of the deceased and the circumstances of the beneficiaries.

Time Limits To Contest a Will in Queensland

Time frames are important for those wishing to contest a will. The Succession Act 1981 requires that written notice be given to the executors no later than 6 months after the will maker’s death. The notice to be given must inform the executors that the applicant intends to file a Family Provision Application. Some severe consequences executors distribute assets when they have received a notice of a family provision claim.

Applicants must file the family provision application with the court within 9 months of death. A family provision application may be made after this date, however, the must be a good reason to satisfy the court that the delay in bringing the application was reasonable. The court will also consider whether any of the estate has been distributed and the conduct of the executors, in allowing an applicant to bring an application that is out of time.

Preparing the Family Provision Application

The Family Provision Application must be prepared for filing in either the Supreme Court of Queensland or the District Court of Queensland. The Magistrates Court does not have jurisdiction to decide family provision claims. Applicants will need to file in the District Court where the estate has a value of up to $750,000 or in the Supreme Court for amounts above that value. Therefore applicants will need to be reasonably aware of the value of the estate to determine whether the matter is filed in the District Court of Queensland or the Supreme Court of Queensland.

It is not uncommon for family provision applicants do not know the value of the estate. I recommend seeking the assistance of a qualified wills and estate lawyer who will be able to make enquiries of the executors on your behalf, which may be provided or may not, at this point, in which case, the lawyers may perform various company and property searches of the testator or testatrix (will-maker) to help determine the value of the estate. Further, if the executors refuse to provide the value to your wills and estate lawyers, they will be required to provide family provision claim applicants with the value of the estate when they file their affidavits in the court – which they must do.

Once the correct court is determined, the family provision application must be filed with an affidavit. An affidavit is a document that is made by the applicant that sets out facts and circumstances such as the relationship between her and the testator or testatrix (the deceased). The affidavit should also set out the nature of their relationship, the support that was provided and their personal circumstances as to why they 

The affidavit is an in-depth document and should address all of the matters that the court must consider when deciding whether or not the will has provided adequate provision to the applicant.

The Family Provision Process

First, the Family Provision Application and the affidavit in support must be filed with the court, along with the filing fee. After that, the application must be served on the executors. The executors will then be required to file affidavits of their own.

Before proceeding to court, and under the Court’s practice directions, after the family provision application is filed, the applicant and the respondent (the executors) must enter into a dispute resolution process. Read more about the dispute resolution process.

If the dispute resolution process fails, the parties will be required to proceed to court to have the matter heard. The wills and estate lawyers will engage a barrister who has the proper experience to be an advocate in court in such matters.

What Will The Court Will Consider in a Family Provision Application

After determining that an applicant is an eligible person, the court will consider the relationship of the applicant and the deceased, the support that the deceased provided to the applicant in their lifetime. Consideration will also be given to the applicant’s health, their personal financial position, their relationship with the will-maker and weight those factors against the size of the estate, the wishes of the deceased and the financial circumstances of the beneficiaries.

The court can order the transfer of any property that would otherwise be included in the estate to one or more people. The court must also decide whether there are other people entitled to receive some part of the estate and if so what proportion they should get. If no one else claims anything then the whole of the estate goes to the named beneficiary.

The court can order the transfer of any property that would otherwise be included in the estate to one or more people. The court must also decide whether there are other people entitled to receive some part of the estate and if so what proportion they should get. If no one else claims anything then the whole of the estate goes to the named beneficiary.