In Queensland, a person is eligible to contest a will if he or she has been left with inadequate provision from a departed’s estate. The legal term for this matter is ‘family provision application’. For a person to succeed in contesting a will, they must be eligible in relation to the departed.
The Succession Act 1981 is the main succession legislation in Queensland. Part 4 of this Succession Act 1981 relates to family provision claims that are usually brought by family, domestic partners or dependents who want a bigger share of the departed’s Estate.
1) The deceased’s spouse
2) The deceased’s child
3) The deceased’s dependent
These specific terms ‘child’, ‘spouse’, and ‘dependant’ are clearly defined in this Act. Below is a summary of eligible people under each category.
Any of the following persons fall under this category and are, therefore, are eligible to contest a will in Queensland:
• The departed’s wife or husband
• The departed’s de facto partner
• The departed’s registered partner
• The departed’s former husband or wife
• The departed’s biological child
• The departed’s unborn child
• The departed’s lawfully adopted child
• The departed’s stepchild
• The departed’s parent
• A parent of a child of the departed (as long as the child is under eighteen)
• Any person who was under the care of the departed at the time of death and is under eighteen
For any person to be a dependant, they must have been ‘fully or substantially maintained’ by the departed at the date of the departed’s death.
How Long Do You Have to Contest a Will?
For a person to contest a will in Queensland, a notice needs to be given to the executor, stating that they want to contest the will of the departed. The notice should be in writing and should be given within a period of six months from the date of death. If no notice is received by the executor, the family can go ahead and distribute the estate, leaving no estate assets to be claimed.
However, if a person fails to give notice within six months after the departed’s death date, they can still do so if the estate has not yet been distributed. It should, however, be noted that there is a limitation date which states that a contender should give their notice within the second limit of nine months after the departed’s death. This is if they failed to do so within the first six months.
Grounds for Contesting a Will
There are certain grounds that apply to contesting a will in Queensland. These include if:
1) You are an eligible candidate
2) You are convinced that you were left with an inadequate provision for your complete maintenance and support out of the departed’s estate
After making your claims, the court may then consider various factors, including:
• Your financial position
• Nature and extent of your relationship with the departed
• Any support extended to you by the departed while he or she was still alive
• Any promises the departed might have made to you about how they would divide their estate
• Any contribution you made to towards the growth of the departed’s estate
• Your current living standards
• Any other relevant matter as per the court’s consideration
Since it is hard to properly define what qualifies as adequate provision, it is advisable to contact will dispute lawyers and have them lay it out for you. This is because it varies from one case to the other.
Since contesting a will in QLD could be a challenging task with a lot of rules to adhere to, it is wise to always consult the services of a wills and estates lawyer who will help you with the whole process. The good thing about most of such lawyers in QLD is that they offer these services on a no-win-no-pay basis. This is a great aspect especially if you had to lose the case and did not have enough money to pay for the legal services.
One thing is clear; if you qualify for the family provision application, you have a good chance of winning the case.