Who can contest a Will?
The two most common challenges to a Will are:
Family provision claim - where an eligible person claims that no adequate provision was made for them out of the estate for their proper maintenance and support; and
A challenge to the validity of the Will e.g. capacity of the Testator (the Will-maker) is in dispute.
Lawyers preparing Wills are often asked to provide advice about how to avoid a claim against a Will by a family member who may not be happy with what they have been left (particularly if they aren’t being left anything at all).
Family provision claims are covered by the Succession Act 1981 (Queensland), which is the legislation that deals with Wills and estates in Queensland. The Succession Act sets out that there is a limited category of people who can bring a family provision claim, and this includes:-
A spouse - married or de facto;
Children and step-children (including children of a de facto spouse); and
Anyone else who is a financial dependant of the Testator (the Will maker).
While the above people are all eligible applicants and can bring a family provision claim, whether an applicant will succeed depends on a wide range of factors. The factors the Court will consider can include the size of the estate, the financial circumstances of the applicant, the competing financial circumstances of the beneficiaries named in the Will and any other applicants, the relationship between the applicant and the deceased, and any disentitling conduct by the applicant towards the deceased.
There are very strict time limits on when an applicant can give notice that they intend on bringing a claim against a Will, and when a claim can be filed in the Court. Applicants must give notice of their intention to bring a family provision claim within 6 months from the date of the person’s death, and they must commence Court proceedings within 9 months from the date of the person’s death. If an applicant is outside of either of those time limits, the Court may not let the application proceed.