Estate planning and Wills are rarely as simple as we think. Every situation is unique, so it’s not uncommon that a person may be left out of a Will but believe they have a claim on an Estate. So where do you start if you want to contest a Will?
There are slightly different rules in each state or territory in Australia. There may be different time limits and eligibility requirements. The following applies to Queensland.
How do I challenge or contest a Will?
In Queensland it is necessary to apply to the Supreme Court to challenge the Will. The court will take into account all the circumstances of your life, the size of the estate and the relationship between you and the deceased.
Time limits apply to these applications.
Who can make a claim?
Spouses (including de factos), children (including step and adopted children) and some dependants (parents of the deceased person, the other parent of a child under 18 who is the child of the deceased person, or anyone under 18 who was dependant on the deceased person) can make a claim if they can show they were not adequately provided for in the Will.
What does the Court consider?
The Court takes into consideration many factors. These may include the financial position of the beneficiaries (and any other claimants), the strength of any competing claims and any support provided by the deceased during their life.
They may also consider the nature and extent of the claimant’s relationship with the deceased and any assurances given by the deceased to the claimant on how the estate would be distributed.
Additionally the Court will take into account any other matters considered relevant to the claim.
When should I make a claim?
Since there are time limits in Queensland, you should act as soon as possible if you are thinking of making a claim. If you delay this action, it’s possible that the estate assets may be sold or distributed leaving nothing to make a claim against.
In Queensland you should give notice of your claim to the Executor within six months of the date of death. It is possible however to make “out-of-time” applications, but they’ll only be considered at the Court’s discretion.
What next?
You should speak to a qualified Wills and Estate professional who can provide advice on contesting or challenging a Will.