If you have found you have been left out of the Will or what you have received as a gift is not adequate for your needs, you may be able to bring a claim to contest the Will.
The most common type of Application is an Application for “Further Provision”. What this means is that the amount you have received under the Will is not adequate, and you ask the Court to make an order for further provision. Several factors are taken into account when assessing an Application.
You can read more about those here.
This article is about the process of making an Application.
Time Frames of Contesting a Will
The first and most critical thing to know is that you must comply with the timeframes to bring your Application. If you fail to do that, you will be what is known as “out of time”, and you will have to obtain a special application for permission to start your case. Receiving that permission is not automatic. The Court will assess whether you are genuine in the late filing, whether you have a good reason for the delay, and whether the Estate has already been distributed.
In Queensland, you must file your Application within nine months of the date of death. Your Application is to be filed in either the Supreme Court of Queensland or the District Court of Queensland (which Court depends on the size of the Estate).
Before you lodge your Application, you must give the Executor written notice of your intention to bring a claim. You must do this within six months of the date of death. If you do not provide the Executor with proper notice that you will bring a claim, the Executor is free to distribute the Estate if six months have passed.
So you must:
- Notify the Executor within six months of the date of death that you will bring a claim and;
- Lodge your Application within nine months of the date of death.
Your right to bring a claim for further provision is not guaranteed. What this means is that though you are a spouse or child and you have a right to bring a claim – you might not be successful. Several factors are considered, and an Estate Dispute Lawyer can tell you whether or not you should bring the claim. Some examples might be:
- Whilst you have been left out of the will, your financial circumstances mean that you don’t need further provision;
- You have a need, but the Deceased’s spouse is still alive and also has a need;
- You were estranged from the Deceased;
- The Deceased may have had good reasons not to include you in the Will.
For those reason, you should always get advice before you start your claim.
If you bring your claim and you fail, the Court can order you to pay the costs of the other parties.
This is a considerable risk.
Do I have to go to Court to contest a Will?
The Court has designed a process that requires all parties to make a genuine attempt to resolve their matter before the matter goes to Court and a Judge has to hear the matter.
Most matters settle during this process, particularly if they receive good legal advice and engage properly in the mediation process.
This means that you would only ever have to go to Court if you were not able to reach an agreement about your claim and the Judge had to make a decision.
How is the process of contesting a Will managed?
The Queensland Courts have published what’s called a Practice Direction – this is a specific direction to lawyers and parties to a family provision application about the way the Court expects the matter to be conducted.
You can find a full copy of the Practice Direction here.
The summary version is this:
- The purpose is to resolve matters as early as possible, for parties to have enough information to work out if their claim should proceed and to minimise Court events;
- The Applicant must file what’s called an “Originating Application”. That is a legal term for an application that starts proceedings.
- An Affidavit must also be filed, which sets out information about the Estate and information to support the claim.
- A draft Directions Order must be exchanged with the Executor and other parties. The directions order sets out the timetable for lodging documents and going to mediation.
- Once the Directions Order is agreed upon, it is lodged with the Court and becomes an Order of the Court, which parties must comply with.
- The Directions Order will provide for the Executor to prepare documents along with any other beneficiary who may have a claim.
- The Directions Order then sets out a “Dispute Resolution Plan”, which is a plan to have discussions and then a formal mediation to try to resolve the matter.
- If the matter cannot be resolved and the parties have complied with the Directions Order, the parties can apply to have the matter listed for Trial.
Coming back to the legal advice
Where a party can be ordered to pay another person’s or even the whole Estate’s costs for bringing a claim that will probably fail, it is so very important to get legal advice. We can’t stress this enough. Estate claims are a jurisdiction where costs are awarded regularly, particularly if claims should not have been brought in the first place.
Estate claims are not about what is fair. All estates should not be automatically divided equally between children.
Applications are brought where the gift is not sufficient to meet your needs.