Challenging a Will…
One of the more common types of estate disputes is where the deceased failed to make adequate provision in their will for a person or left them out of the will entirely.
What can you do in those circumstances?
If you are eligible you can apply to the Court to ask for further provision from the deceased estate, which is more commonly known as a family provision application.
When do I have to Claim?
The time periods are strict! In Queensland, you have only 6 months from the date of the deceased’s death to notify of your intention to claim and then, 9 months from the date of the deceased’s death to bring the claim in Court.
Who is eligible to make that claim?
Generally, the following categories of people are eligible:
- the spouses of the deceased (including de facto and former spouses);
- the children of the deceased and that extends to stepchildren and adopted children;
- other dependants who were in some way supported by the deceased (that may include grandchildren, parents of the deceased and members of the deceased’s household)
What will the Court do?
The Court will need to determine the individual circumstances of the case and make an assessment of whether to vary the will of the deceased. Each case is different and the Courts will objectively view the merits of the case and make a decision accordingly. The Courts are guided by the previous decisions that have come before them but there are no hard and fast rules about the likelihood of receiving an entitlement.
The Courts will balance the interests of the person bringing the application with those interests of the other beneficiaries.
What will the Court consider?
The Courts will generally look at a variety of factors including:
- the size of the estate;
- the financial position and need of the person making the application (applicant);
- the applicant’s contributions (financial or otherwise) (if any) to the estate of the deceased;
- the competing interests for the estate;
- the relationship of the applicant to the deceased;
- whether adequate provision has been made for the maintenance and support of the applicant.
If you have any questions or wish to discuss whether you have a claim, please reach out to one of the lawyers in our estate litigation team on (07) 5591 5099 and they will be happy to help.
Author: Matt Kollrepp
Director: Ian Kennedy
Date: 7 September 2020