If you have been left out of a Will or believe that you have not been adequately provided for, you may be able to make a claim for further provision from the estate.
In Queensland, this type of claim is known as a family provision application. It does not involve arguing that the Will itself is invalid. Instead, the Court is asked to consider whether adequate provision has been made for an eligible person from the deceased person’s estate.
Whether you are eligible to make a claim and whether further provision should be made will depend on your relationship with the deceased, your circumstances and the circumstances of the estate.
Strict time limits apply to family provision applications, so it is important to obtain advice promptly if you are considering contesting a Will.
What is a family provision application?
A family provision application is a claim made by an eligible person who believes that adequate provision has not been made for their proper maintenance and support from a deceased person’s estate.
A claim can arise where the deceased left a Will or died without a Will and their estate is being distributed under Queensland’s intestacy laws.
If the Court determines that adequate provision has not been made, it can order that further provision be made from the estate.
A family provision application does not challenge whether the Will itself is valid. If your concern is about the validity of a Will, that is a different type of estate dispute.
Questions about Contesting a Will
Who can contest a Will in Queensland?
Not everyone is entitled to make a family provision application. Under Queensland law, a claim may be made by an eligible person who is the deceased person’s spouse, child or dependant.
These terms have particular legal meanings. For example, a spouse can include a husband or wife, de facto partner and, in some circumstances, a former spouse. A child can include biological, adopted and stepchildren. Whether someone qualifies as a dependant will depend on their relationship with the deceased and their circumstances.
Being eligible to make a claim does not necessarily mean that further provision will be made. The Court will consider the circumstances of the particular case when deciding whether an order should be made.
What does the Court consider when deciding a family provision application?
The Court considers a range of factors when deciding whether adequate provision has been made for an eligible person’s proper maintenance and support.
This can include the applicant’s financial position and needs, their relationship with the deceased, the size and nature of the estate, any provision already made for them, the circumstances of other beneficiaries and eligible people, and any contributions the applicant made to the deceased or their property.
The Court may also consider other relevant circumstances, including the deceased person’s reasons for making the provision they did.
There is no set formula for determining whether further provision should be made or, if so, how much. Each claim depends on its own circumstances.
How long do I have to contest a Will?
Strict time limits apply to family provision applications in Queensland.
If you intend to make a claim, you generally need to give the executor written notice of your intention to make a claim within six months of the date of death. An application must generally be commenced in Court within nine months of the date of death.
These time limits run from the date of death, not from the date Probate is granted or when you become aware of the Will.
The Court may allow a late application in some circumstances, but permission is not automatic. If you think you may have a claim, it is important to obtain advice promptly.
What information will I need to make a claim?
The information needed will depend on your circumstances, but it will generally be important to understand your relationship with the deceased, your financial circumstances and the estate.
This may include information about your income, assets, liabilities and expenses, your financial needs, any health or other circumstances affecting your financial position, your relationship with the deceased, and any financial or other contributions you made to the deceased or their property.
Information about the estate will also be relevant, including the Will, the assets and liabilities of the estate and the beneficiaries or other people who may have an interest in it.
You do not need to have all of this information before obtaining advice. We can help you identify what information and documents will be relevant to your particular claim.
What happens after I decide to contest a Will?
The first step is usually to obtain information about the Will and the estate and assess the circumstances of your claim.
If you decide to proceed, the executor should be given written notice of your intention to make a family provision claim. Information and evidence relevant to the claim will then need to be gathered, including details of your financial circumstances, your relationship with the deceased and the estate.
Many family provision claims are resolved through negotiation or mediation. If an agreement cannot be reached, Court proceedings may be required
Will I have to go to Court?
Not necessarily. Many family provision claims are resolved through negotiation or mediation without the Court having to decide the outcome at a final hearing.
In some cases, Court proceedings may need to be commenced to progress the claim or protect your position. This does not necessarily mean the matter will proceed to a final hearing. Negotiations can continue, and mediation may take place, after proceedings have commenced.
If an agreement cannot be reached, the Court may ultimately need to decide whether further provision should be made and, if so, what provision is appropriate.
What can happen if my claim is successful?
If a family provision claim is successful, the Court can order that further provision be made for you from the deceased person’s estate.
The type and amount of provision will depend on the circumstances. It may involve a lump sum, a particular asset or another form of provision from the estate.
Where a claim is resolved through negotiation or mediation, the parties may agree on the provision to be made rather than asking the Court to determine the outcome.
There is no fixed amount or percentage that a successful claimant will receive.
What are the risks of contesting a Will?
There is no guarantee that a family provision claim will be successful or that you will receive the amount or type of provision you are seeking.
Contesting a Will can also involve legal costs and take time to resolve. While the Court has power to make orders about the costs of proceedings, you should not assume that your legal costs will automatically be paid from the estate. Depending on the circumstances, there may also be a risk of being ordered to pay some of another party’s costs.
The costs of a dispute can reduce the amount ultimately available in the estate. The strength and likely outcome of the claim, the value of the estate and the costs involved should therefore be considered when deciding how to proceed.
Where appropriate, negotiation or mediation may reduce some of the cost, time and uncertainty involved in having the Court determine the claim.
Can I contest a Will if I am also the executor?
Yes. Being appointed as executor does not necessarily prevent you from making a family provision claim if you are also an eligible person.
However, this can create a potential conflict. As executor, you have responsibilities to administer the estate in accordance with your legal obligations. As a claimant, you have a personal interest in seeking further provision from that estate.
How those roles should be managed will depend on the circumstances. It is important to obtain advice about both your potential claim and your responsibilities as executor.