In Queensland, deceased estates and wills are governed by the Succession Act 1981. A family member of a deceased person who left behind a valid will may contest the will on the basis that the deceased failed to make adequate provision for them. This is known as a family provision claim. This page deals with the laws around contesting a will in Queensland.
Contesting a will vs challenging a will
It is important to note that contesting a will is different from challenging a will.
A person who contests a will argues that the provisions of the will are unfair and that the court should intervene to ensure a fair distribution of the estate. In contrast, a person who challenges a will argues that the will is invalid and should be disregarded.
Family provision claims
A family provision claim can be made by a spouse, child or dependent of a deceased person if adequate provision is not made from the estate for the person’s proper maintenance or support. When such a claim is made, the court has the discretion to make any order it sees fit to provide for the claimant.
The court may order provision in favour of the person either by way of a lump sum or by way of periodical payments. It may attach conditions to the order.
The court may refuse to make an order in favour of the claimant if it considers that their character or conduct disentitles them to an order. The court may also refuse to make an order where it is reasonable in the circumstances to do so.
Family provision claims are governed by sections 40 – 44 of the Succession Act 1981.
Who can contest a will?
In Queensland, the categories of person that are eligible to contest a will are limited to spouses, children and dependents.
Spouses
A spouse may be a husband, wife, de facto partner, or civil partner. It may also be a former spouse.
Children
A child includes a biological child, adopted child or stepchild.
Dependent
A dependent includes a person who was wholly or partly maintained by the deceased prior to their death and was:
- the deceased’s parent
- the parent of a surviving child of the deceased; or
- a person under the age of 18.
For a person to be found to have been dependent on the deceased, they must show that the deceased provided a substantial level of maintenance that allowed them to maintain their standard of living – for example, by paying their rent or providing them with rent-free accommodation.
What is adequate provision?
In order to succeed in a family provision claim, the claimant must demonstrate that the testator failed to make adequate provision for them in the will.
A testator may have failed to make adequate provision for a person in two ways:
- They made no provision for the person
- They made some provision for the person, but it was inadequate for the person’s proper maintenance and support
To prove that adequate provision was not made for the claimant, the court must be provided with evidence of the claimant’s income, assets, expenditure and liabilities as well as their earning capacity, medical needs, education needs and lifestyle.
The court will take into account the claimant’s financial responsibilities including any dependents they have, their age, whether any other person is liable to support them and the size of the estate. The court may also take into account evidence of the relationship the claimant had with the deceased and any behaviour that may amount to ‘disentitling conduct’ and which may justify the deceased’s decision to make no provision, or limited provision, for the claimant.
Time limits
A family provision claim must be made within a strict time limit.
A claimant must notify the executor that they intend to make a claim within six months of the testator’s death. This allows the executor to refrain from administering the estate until the claim has been settled.
The claim must be lodged within nine months of the testator’s death unless the Supreme Court allows a late application. This will only occur if there was a sufficient reason for the delay – for example, the claimant was unaware that the testator had died. If the estate has already been distributed, it is unlikely that the court will allow a claim to be filed.
Jurisdiction
If the Supreme Court of Queensland has made a grant of probate or a grant of letters of administration of the will, a person may initiate a family provision claim in the Supreme Court of Queensland.
Costs
In contested estate matters, costs are at the discretion of the court. In most cases, a successful claimant will have their costs paid out of the estate.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
