This article is the first in our series answering common questions about estate and probate disputes.
If you have been left out of a Will, or you have been named in a Will but believe you have been treated unfairly, you may wonder whether you can make a claim against the estate.
In Queensland, certain eligible people may make a family provision claim if the Will does not provide adequately for their proper maintenance and support. Every estate and potential claim is different. It is important to obtain legal advice about your circumstances.
Can I challenge a Will if I have been left out of it, or named in it but treated unfairly?
Yes, but you must be an eligible person who can make a claim under Queensland’s succession laws.
This may include a:
- Spouse: Including a de facto partner and, in some circumstances, a former spouse;
- Child: Including a stepchild or adopted child; or
- Dependant of the deceased.
Queensland law allows eligible people to apply for provision from an estate when a Will does not provide adequately for their proper maintenance and support. Whether you qualify, and whether you have a strong claim, depends on your circumstances.
The Queensland Public Trustee provides information about Family Provision Applications, including who may qualify to make a claim.
What is a family provision claim?
A family provision claim seeks provision from a deceased person’s estate. It may apply when the Will, or the rules that apply if there is no Will, does not provide adequately for an eligible person’s proper maintenance and support.
A family provision claim does not simply mean that someone disagrees with the deceased’s wishes. The Court considers the circumstances of the eligible person and the estate before deciding whether to make an order.
The Succession Act 1981 sets out the relevant Queensland laws.
Do time limits apply to a family provision claim?
Yes. You should consider the applicable time limits as soon as possible after a person’s death.
Broadly, a person intending to make a family provision claim should:
- Give written notice of the intention to make a claim within six months of the deceased’s death.
- Commence the application within nine months of the deceased’s death.
These timeframes are important. The Queensland Succession Act 1981 provides that, unless the Court otherwise directs, a person must institute family provision proceedings within nine months of the deceased’s death.
The Queensland Succession Act 1981 sets out the relevant requirements. The Queensland Public Trustee also explains the six-month and nine-month timeframes.
Key family provision timeframes
| Timeframe | What it means |
|---|---|
| Within 6 months | Give written notice of an application or intended application. This can help protect against certain distributions from the estate. |
| Within 9 months | Generally, you must institute family provision proceedings within nine months of the deceased’s death unless the Court otherwise directs. |
If you think you may have a claim, obtain legal advice about your estate dispute promptly. Do not wait until a deadline approaches.
How do I get a copy of the Will?
Certain people can inspect or obtain a copy of a deceased person’s Will if they request one.
This can include a spouse, parent or child of the deceased. It may also include a person who may qualify to make a family provision application and certain people who would inherit under the intestacy provisions.
Queensland legislation also specifies other people who may have a right to inspect or obtain a copy of a Will.
The person who holds or controls the Will may need to let an entitled person inspect it or provide a certified copy. The person requesting the copy may need to pay reasonable expenses.
The Succession Act 1981 contains the relevant Queensland provisions concerning access to Wills.
Is my claim strong or weak?
It depends on various factors.
The threshold question is the level of need of the challenger.
If a challenger can demonstrate financial need, the Court may consider the following when determining how much provision they ought to receive:
- the size of the estate;
- the nature of the relationship between the challenger and the deceased; and
- other “competing” claims.
The Court may consider a range of circumstances when deciding whether to make provision from an estate and, if so, what provision to make.
Simply being left out of a Will does not automatically mean that a claim will succeed. Similarly, receiving something under a Will does not necessarily prevent an eligible person from making a claim if the provision remains inadequate.
If you are unsure whether you may have a claim, our family provision and Will disputes service provides further information about the legal process.
What factors can affect a family provision claim?
Every estate dispute is different. The Court may consider factors such as:
- the size and nature of the deceased’s estate;
- the financial circumstances and needs of the person making the claim;
- the relationship between the deceased and the person making the claim;
- the needs and circumstances of other people who may have competing claims on the estate;
- the nature and extent of any financial or other support the deceased provided during their lifetime; and
- the circumstances surrounding the deceased’s Will and the provision made for the claimant.
The Court considers these factors together. No simple formula determines whether a family provision claim will succeed or how much a claimant may receive.
Who pays the costs of the challenge?
If a challenger succeeds with their claim, the estate usually pays the legal costs of pursuing it. However, the Court has discretion when making costs orders.
Someone considering a family provision claim should not assume that the estate will automatically pay their legal costs. The circumstances of the case and the Court’s orders can affect who pays the costs.
If you are concerned about the potential costs of an estate dispute, discuss the likely costs and risks with your solicitor before deciding how to proceed.
What should I do if I think I have a claim against an estate?
- Obtain a copy of the Will if you are entitled to request one.
- Check the date of death so you know which timeframes apply.
- Gather information about your financial circumstances and any financial support the deceased provided.
- Consider your relationship with the deceased and the circumstances of the estate.
- Obtain legal advice as soon as possible so you can understand your options and any applicable deadlines.
Act promptly if you think you may have a family provision claim. The applicable time limits can be short.
The Queensland Public Trustee’s guide to administering a deceased estate also explains the estate administration process.
Frequently Asked Questions About Contesting a Will in Queensland
Can I contest a Will if I have been left out?
Potentially. In Queensland, certain eligible people may make a family provision claim when a Will does not provide adequately for their proper maintenance and support. Being left out of a Will does not guarantee that a claim will succeed.
Can a child contest a parent’s Will in Queensland?
A child of the deceased may qualify to make a family provision claim. The strength of the claim depends on the child’s circumstances, the estate, the relationship with the deceased and any competing claims.
Can a stepchild contest a Will in Queensland?
A stepchild may qualify as an eligible person for a family provision claim in Queensland. The Succession Act 1981 and the circumstances of the relationship with the deceased determine eligibility.
How long do I have to contest a Will in Queensland?
Important timeframes apply to family provision claims. You should generally provide written notice within six months of the deceased’s death and institute proceedings within nine months, unless the Court otherwise directs.
Can I get a copy of the Will before making a claim?
Potentially. Queensland legislation allows certain entitled people to inspect a Will or obtain a certified copy from the person who holds or controls it.
Will the estate pay my legal costs?
The Court ultimately determines costs. A successful claimant may have their costs paid from the estate, but the estate does not automatically have to pay all legal costs.
Need advice about a Will or estate dispute?
If you have been left out of a Will, received less than you believe you need, or have concerns about how an estate is being distributed, obtain legal advice early.
Our team can assess your circumstances, explain the relevant Queensland succession laws and help you understand your options.
Contact us to discuss your Will or estate dispute and find out what options may be available to you.