In Queensland, a will is only valid if the person making it (the testator) had testamentary capacity—a clear understanding of…
While a valid will usually reflects the final wishes of the person who made it (the testator), circumstances sometimes arise where family members, dependants, or other interested parties feel that the will is unfair or does not accurately represent the testator’s true intentions. In Queensland, the law provides avenues for challenging a will—known as contesting or disputing a will—under specific grounds and within certain timeframes. Understanding these reasons, as well as the legal steps involved, can help you navigate what can be an emotionally charged situation.
Common Grounds for Challenging a Will
Not everyone who feels disappointed by a will’s distribution can successfully challenge it. In Queensland, the grounds for contesting a will generally fall into three main categories:
1. Lack of Testamentary Capacity:
A will-maker (testator) must understand the nature and consequences of making a will. If it’s proven that the testator lacked the required mental capacity—due to dementia, mental illness, or another impairment—when the will was signed, the court may declare the will invalid.
2. Undue Influence or Fraud:
If the testator’s free will was overpowered by someone else’s persuasion, coercion, or manipulation, or if the will is the product of deceit, a challenge may be successful. Demonstrating undue influence can be challenging, as the court requires clear evidence that the will-maker’s decisions were not their own.
3. Inadequate Provision for Family and Dependants (Family Provision Claims):
Queensland law (the Succession Act 1981) allows certain family members and dependants—such as a spouse, child, or financial dependant—to seek further provision if they believe the will does not leave them adequate support. This doesn’t necessarily challenge the will’s validity but argues that the distribution is not fair or sufficient, prompting the court to adjust the share allocated to the claimant.
Who Can Challenge a Will in Queensland?
Eligible parties differ depending on the type of challenge:
- Lack of Capacity or Undue Influence Claims:
Anyone with a legitimate interest in the estate can raise these challenges. Common challengers include children, siblings, or other relatives who believe the will is not genuine. - Family Provision Claims:
Only certain categories of people can make a family provision application. Typically, this includes a spouse (married, de facto, or registered partner), children (including stepchildren and adopted children), and dependants maintained by the deceased person before their death.
The Legal Process of Contesting a Will
1. Seek Legal Advice Early:
If you suspect a will is invalid or unfair, speak with an experienced estate lawyer as soon as possible. They can assess the strength of your claim, advise on the proper grounds for challenging, and explain potential outcomes.
2. Timeframes Matter:
In Queensland, strict time limits apply—particularly for family provision claims. Generally, claimants must notify their intent to apply within six months of the date of the deceased’s death and must commence the application within nine months. Missing these deadlines can result in losing the right to challenge, unless the court grants an extension.
3. Gathering Evidence:
A successful challenge often hinges on evidence. For lack of capacity or undue influence claims, medical records, witness statements, and expert opinions may be necessary. For family provision claims, financial documents and details of the claimant’s relationship with the deceased can help demonstrate need or dependency.
4. Mediation and Negotiation:
Before going to court, many disputes are resolved through negotiation or mediation. The parties may reach a settlement that modifies the estate distribution without incurring the full cost and stress of a trial.
5. Court Hearing (If Necessary):
If no agreement is reached, the matter proceeds to a court hearing in the Supreme Court of Queensland. The court examines the evidence, considers legal arguments, and makes a decision. Outcomes may include declaring a will invalid (in cases of lack of capacity or undue influence), adjusting distributions (in family provision cases), or dismissing the claim.
Potential Outcomes and Consequences
If a Will Is Declared Invalid:
If the court finds that the will is invalid (due to lack of capacity or undue influence), an earlier valid will may take effect. If no earlier valid will exists, the estate may be distributed according to intestacy rules, which follow a statutory formula based on family relationships.
If a Family Provision Claim Succeeds:
The court may order that certain claimants receive a greater share of the estate than the will originally allocated. This does not invalidate the will entirely; it simply adjusts the portions given to beneficiaries to ensure fair provision.
Costs and Appeals:
Challenging a will can be expensive, and costs are at the court’s discretion. Often, costs may be paid from the estate, reducing the inheritance pool for all beneficiaries. Parties unhappy with the outcome can consider an appeal, but appeals must be based on legal errors made during the initial hearing, not just dissatisfaction with the result.
Tips for Avoiding Contests
While disputes are sometimes unavoidable, careful planning by the testator can reduce the likelihood of challenges:
- Seek Legal Advice When Making a Will:
Ensuring the will is properly drafted, witnessed, and that your capacity is clear helps prevent future disputes. - Communicate with Beneficiaries:
Explaining your decisions to family members in advance can ease misunderstandings and reduce resentment. - Consider Trusts or Other Estate Planning Tools:
Setting up testamentary trusts or making inter vivos gifts can provide clarity, structure, and flexibility, reducing grounds for legal challenges.
Final Thoughts
Challenging a will in Queensland is a structured legal process that requires valid grounds, adherence to strict timelines, and often, professional guidance. While the decision to contest a will can be emotionally and financially demanding, it may be the only recourse when you believe the testator’s true intentions aren’t reflected or that the will fails to provide fairly for dependants.
If you’re considering contesting a will—or defending one against challenge—seek expert legal advice to navigate this sensitive and complex area of estate law, ensuring the best possible outcome for all involved.