Contesting a Will in Queensland

In Queensland the two main differences between other states is in the limitation period and eligibility.

Unlike other states, Queensland includes step-children in the definition of ‘children’ under circumstances where a biological parent was still in a relationship with a step-parent upon their death.  Its inclusion opens up the category of eligible people in a hotly contested area by recognising step-children.

There is an additional procedural requirement whereby notice to the executor of your intention to contest the will must be given within six months of the date of death.

General criteria can be found in Part 4 of the Succession Act (Qld) 1981.

Step One – obtain a copy of the will

This is crucial. Do you have it? Have you asked for a copy? What does it say?

If you haven’t seen a copy of the will the very first step is to obtain one – whether you are named in it or not. You can simply ask the executor for a copy. If he or she won’t oblige there are other steps that can be taken, see: how do I get a copy of the will?  Alternatively, contact us, we may be able to help.

If there is no will you need to consider whether or not you are eligible under the rules of intestacy – in other words, what happens when there is no will. These rules do not always work fairly and can be subject to challenge, just like any will can.

If you don’t know who the executor is, consider asking close friends and relatives of the deceased or the deceased’s lawyer. If you are still unable to find a will you need to consider the rules under intestacy and how they effect you: what if there is no will?

If you have seen the will and you know that, either:

1. you are not named in it; or
2. you are named but have not been given an adequate share;

… consider the next step, establishing eligibility.

Step Two – establish eligibility

Not just anyone can contest a will, you must be a person who was in a certain relationship with the deceased.

Are you an ‘eligible person’?  In other words, do you fit into the category of people who are permitted to contest a will?

In Queensland, these are:

• a spouse or de facto spouse (including same sex partners);
• a child, including adopted children and stepchildren (if the stepchild’s parent and the deceased were still in a relationship at the time of either of their deaths);
• a dependant (who was a dependant at the time of the deceased’s death).

Step Three – check the limitation period

In Queensland the limitation period for commencing a family provision claims is 9 months from the date of death.

If you wish to contest a will you’ll need to file an application in court no later than the specified date.

An application is considered ‘made’ on the day that it is filed in the Registry. If the date of death is uncertain, the court will determine a reasonable time or date.

If you do not meet this deadline and you have a good reason why, you may be able to convince the court to make an exception. Generally speaking however, time limits when challenging wills are strictly applied.

Step Four – consider the size and nature of the estate

Once you have established that 1) you are eligible to make a claim for family provision and 2) the limitation period has not expired, the next step in challenging a will is to obtain clarity surrounding the assets and liabilities of the estate.

What are the assets and liabilities of the estate and what are their nature? Was there property, superannuation, savings? Did the deceased own a business, shares, other investments? Were the assets held solely or jointly? Did he or she have debts?

In a claim for family provision it is ultimately the executor’s duty to disclose these details. But in the early stages it is still helpful if you have at least a rough idea of what you’re dealing with. If you have been out of touch with the deceased and genuinely have no idea as to what the estate comprises often a letter from your solicitor to the estate solicitor is sufficient to obtain some particulars. Contact us if we can help you do this.

Step Five – can you establish a need for provision?

Believe it or not, you do not have a ‘right’ to an inheritance.  If you are a wealthy person, if you are ‘doing okay’ financially, then your deceased parent is not obliged to give you more money.

I once had an enquiry from a man who was aggrieved that his mother had only left him $100,000 out of an estate of $1 million. She gave the rest to his sister. When I enquired further it turned out that he was a self-funded retiree with over $6 million in assets, but he was calling me because he didn’t think it was fair that his sister got more than him. He didn’t need the money, he was just angry that his mother didn’t treat them equally. I had to tell him that I didn’t think he had a case because a) he was already wealthy and, besides b) his mother still gave him $100,000 – a lot of money!

Turns out this wasn’t really about the money, it was about this man’s anger and jealousy towards his sister who his mother favoured. Parents can (and do) favour one child over the other. There is no rule that says they have to treat them equally.

In addition, the concept of ‘fairness’ needs to be left behind in this area of law.  It is not about what’s fair.  This can often be a difficult idea to for excluded people to accept.

So what is ‘need’ and do you have it?  It depends – every case is different. As most of us don’t have $6 million in assets, this step is often easily satisfied because most people have a mortgage or they’re renting or they don’t have enough superannuation to retire on or their house needs renovations that they can’t afford. In most cases it is not a difficult requirement to overcome.

Generally speaking a person with a mortgage or some other debt will have ‘need’, but this is to be considered in light of the size of the estate and its competitors.