How can Wills be contested?
Wills can be contested under various provisions of the Succession Act 1981 (Qld). These include:
- One of the most prominent methods of contesting or challenging a Will is by making a Family Provision Application. This provision allows the Court to intervene and change the terms of the Will where family members or dependents are not listed as beneficiaries in the Will.
- If there is doubt about the validity of the Will for whatever reason, a Court has power to invalidate it in particular circumstances.
- If you suspect the deceased was unduly influenced or did not have testamentary capacity
Who can make a Family Provision Application?
A Family Provision Application can be made by the following if they have been excluded or not adequately provided for in the Will:
- Spouse, including de-facto spouse;
- Children, including step children;
- Dependants.
When will a Family Provision Application succeed?
The law requires the Courts to determine Family Provision Applications in two stages:
- Does the Will fail to make “adequate provision” for the proper maintenance and support of the applicant; and
- If so, what provision should be made for the Applicant?
In determining the above two stages, the Court will consider various factors, including:
- 1. Whether adequate provision has been made for the Applicant from the estate of the deceased;
- How large or small is the estate;
- How the Will appointed beneficiaries and how were the assets divided between the beneficiaries;
- The financial circumstances of the Applicant;
- The details of the relationship between the deceased and the Applicant and how much the Applicant relied upon the deceased;
- The on-going needs of the Applicant; and
- The character and/or conduct of the Applicant.
Strict time limits apply for Family Provision Applications and you should immediately seek expert legal advice if you think you may have been left out of a Will.