Conflict over estates can happen either because there is no will, there is a will that is not valid, or if a family member is disputing what a will says.
The ability to contest a will reflects the legal system striking a balance between people’s right to leave their estate to whoever they want, and the recognition that they may have a responsibility to provide for certain people.
If you intend to dispute a will you should seek legal advice about your likelihood of success beforehand. A lawyer will also be able to advise you on your options of resolving the dispute. If you are an eligible person you can dispute a will by making a ‘Family Provision Claim’
There are strict time limits to contest a will in all states. In Queensland you have 9 months from the date of death to file an application in court. The Court does have discretion to extend this time, if they consider it appropriate after looking at:
- the reason for delay;
- the length of delay;
- whether the estate been distributed;
- and whether the claimant has engaged in any unconscionable conduct.
Informing the executor
If you intend to dispute a will you should give the executor of that will notice of this intention. This must be done in writing and within 6 months of the death, as if the executor has not received notice within 6 months they are free to distribute the estate. If the estate has been distributed there may not be anything left for you to claim from it.
Obtaining a copy of the will
You will need to see a copy of the will if you are intending to dispute it, in order to make sure you know exactly what you are disputing. To see the will, you need to contact the executor, or the solicitor who is acting for the estate and request a copy.
You will be entitled to inspect the will, and receive a certified copy if you:
- Are mentioned in the will, or an earlier will (either by name or reference);
- Are a spouse, parent or child of the deceased;
- Would be entitled to a share of the estate if the deceased had not left behind a will;
- Are a parent or guardian of any of the above category of people;
- Are a creditor or person with a legal claim against the estate;
- Are someone who is eligible to make a family provision application.
If there is no will you will have to apply to see the Letters of Administration instead.
Family Provision Applications
In order to be eligible to make this application you need to be either:
- The deceased’s spouse, de facto partner or registered partner; or
- Their former spouse, or registered partner;
- Their child (includes adopted child and step-child); or
- Their dependant (someone who was ‘wholly or substantially maintained’ by the deceased at their death).
If you fit within one of these categories, you are eligible to contest the deceased’s will if you can show that the deceased’s will has left you without adequate provision for your maintenance and support.
What will be considered adequate provision for this maintenance/support varies for the individual circumstances of each matter, so it advisable that you speak to a lawyer first to determine if you have a realistic chance of successfully disputing a will.
Factors the court will consider
The court will consider:
- The nature and length of your relationship with the deceased;
- Any contributions you made to the estate;
- Any promises made by the deceased regarding their estate and how they would divide it;
- The size of the estate;
- Any support you had provided to the deceased;
- The financial needs of people with a claim/the beneficiaries;
- standard of living you are accustomed to and deceased’s influence on that lifestyle;
- the validity of competing claims;
- any conduct of applicant that might make them not entitled to provision;
- other matters the court considers relevant
It may be possible to resolve your dispute without formal legal proceedings. Mediation will also usually be ordered by the Court, to allow both parties to present their side and try to reach a settlement between themselves.
Most disputes over wills are settled before going to trial. A lawyer can help you negotiate during a settlement and can advise you how to proceed if you are not able to reach a settlement.
Challenging the distribution of an intestate estate
If all the beneficiaries agree on a solution that is different to the legally prescribed distribution of an intestate estate they can draw up a deed of family arrangement and change the way the estate is to be distributed.
You may also be able to make a family provision claim for an intestate estate if the division of the estate you received is not sufficient to provide for your maintenance and support.
Other grounds for challenging a will
There are other grounds on which a Will might be challenged. If you are concerned about how the Will was entered into or the capacity of the deceased to make a will, you should speak with a lawyer.
To find out more about what is involved in disputing a Will or responding to an application for family provision, contact our office on (07) 3343 9522 or (07) 5446 1745 or through our contact us service here.