If you’re looking to contest a Will in QLD, or want to know whether someone is entitled to challenge one, we’ll help you learn:
- the grounds for contesting a will
- who is eligible to contest a will
- how to start the process.
Discover everything you need to know to protect your rights and ensure a fair outcome.
Keep reading to get started.
Understanding the Grounds for Contesting a Will
In Queensland, under the Succession Act 1981, several legal grounds exist on which a Will can be contested.
These grounds are used to challenge the validity of the Will or to seek a larger share of the estate if a person believes they have been unfairly treated.
Below are the primary grounds for contesting a Will.
Lack of Testamentary Capacity.
For a Will to be valid, the person making the Will (the testator) must have had the mental capacity to understand the nature of their actions when the Will was created.
Lack of testamentary capacity is one of the most common grounds for contesting a Will and includes:
- Mental Illness or Cognitive Decline: If the testator was suffering from a mental illness, dementia, or any other condition that impaired their ability to understand what they were doing when making the Will, the Will may be challenged.
- Understanding of the Will: The testator must understand the extent of their estate, who their beneficiaries are, and the implications of including or excluding certain individuals in their Will.
- Coherence and Awareness: The testator must be aware of and understand their actions, decisions, and the consequences of those decisions at the time of drafting the Will.
Undue Influence
A Will can be contested if it is believed that the testator was coerced or manipulated into making or changing the Will in a way that does not reflect their true intentions.
Undue influence includes:
- Pressure or Manipulation: If a beneficiary or other person applies significant pressure on the testator to make or change the Will in their favour, the Will can be challenged. This may involve threats, persistent persuasion, or other forms of influence that overpower the testator’s free will.
- Vulnerability of the Testator: The likelihood of undue influence is higher if the testator was elderly, ill, or otherwise vulnerable at the time the will was created.
- Evidence of Influence: Proving undue influence can be challenging and usually requires evidence such as witness statements, medical records, or documentation of the relationship between the testator and the influencer.
Lack of Proper Formalities
A Will must meet certain formal requirements to be legally valid. If these requirements are not met, the Will may be contested.
The formalities include:
- Written and Signed: The Will must be in writing and signed by the testator.
- Witnesses: The Will must be signed in the presence of at least two witnesses who are not beneficiaries under the Will. The witnesses must also sign the Will in the presence of the testator.
- Proper Execution: The will must be executed correctly according to the legal formalities in Queensland. If there are discrepancies in the signing, witnessing, or execution of the Will, its validity can be questioned.
Fraud or Forgery
If a Will has been created or altered fraudulently, or if the testator’s signature has been forged, the Will can be contested on the grounds of fraud or forgery.
Examples include:
- False Representation: If someone made false statements to the testator to induce them to create or change the Will, this constitutes fraud.
- Forgery: If the testator’s signature or any part of the Will has been forged, the Will is not legally valid.
- Misleading Information: If the testator was misled about the contents of the Will, or if the Will was altered without their knowledge, it can be challenged.
Lack of Knowledge and Approval
The testator must have knowledge of and approve the contents of their Will.
If it is believed that the testator did not fully understand or agree to the provisions in the Will, it can be contested.
This includes:
- Complex Legal Terms: If the Will contains complex legal language that the testator may not have understood, this could be a ground for contesting.
- Mistakes or Errors: If the Will contains errors or provisions that the testator did not intend, this might indicate a lack of knowledge and approval.
- Translation Issues: If the testator did not speak the language in which the Will was written and the translation was inadequate, this could affect their understanding and approval.
Insufficient Provision (Family Provision Claims)
Eligible persons who believe they have not been adequately provided for in the Will can contest it on the grounds of insufficient provision.
This typically applies to close family members and dependants.
The court will consider factors such as:
- Financial Needs: The current and future financial needs of the claimant, including their ability to support themselves.
- Relationship with the Deceased: The nature and duration of the relationship between the claimant and the deceased.
- Size of the Estate: The total value of the estate and whether it is sufficient to provide for the needs of all eligible claimants.
- Moral Duty: Whether the deceased had a moral duty to provide for the claimant in their will, based on the nature of their relationship and the circumstances.
Who Can Contest a Will?
- Spouse or De Facto Partner
- Former Spouse or Partner
- Children of the Deceased: Whether biological, adopted, or stepchildren, are eligible to contest the will.
- Dependants of the Deceased: Individuals who were financially dependent on the deceased at the time of their death.
- Grandchildren and Other Relatives: Although not automatically eligible, grandchildren or other relatives may contest a will if they can demonstrate that they were financially dependent on the deceased or that there was a special relationship that would justify a claim.
Special Considerations:
- Estranged Family Members: Even if a family member had a strained relationship with the deceased, they might still have grounds to contest the will if they can demonstrate that they should have been provided for.
- Previous Wills: If an individual was included as a beneficiary in a previous will, this might strengthen their case for contesting the current will if they have been left out or received a reduced inheritance.
How to dispute a Will in Queensland
Contesting a Will typically involves legal proceedings, and the success of such a challenge depends on the strength of the evidence presented to support the claim.
Speaking to our team will help you gain clarity around the strength of your claim based on the evidence and legal grounds.
Our experienced estate lawyers will be able to advise you on the likelihood of success and guide you through the legal processes. This often includes a formal application with the Queensland Supreme Court. Before the case goes to trial, the court may order mediation to resolve the dispute.
The court may:
- uphold the Will: If the challenge is unsuccessful,
- amend the Will: To provide better for the claimant if the court finds merit in the case,
- invalidate the Will: If serious issues such as fraud or undue influence are proven.
Once the court makes its decision, it will issue final orders that are legally binding. This may involve:
- distribution of the Estate: According to the court’s ruling
- payment of Costs: Which may be ordered against the losing party
Each ground requires specific proof and legal arguments, and the court will carefully consider all relevant factors before making a decision. After the court’s decision, ensure that the estate is distributed according to the final orders, and all legal and financial matters are resolved.
Why Consult Us When Contesting a Will in Queensland
Contesting a will can be a complex and emotionally charged process, requiring an in-depth understanding of legal grounds, eligibility, and procedures.
As experienced legal professionals specialising in wills and estates, we can help protect your rights and achieve a fair outcome. Here’s why seeking our guidance is essential:
1. Expert Understanding of Grounds for Contesting a Will
The Succession Act 1981 outlines specific grounds under which wills can be contested. Our expertise ensures your claim is presented effectively,
2. Clarifying Eligibility to Contest
Not everyone can contest a Will. Eligibility depends on factors like your relationship with the deceased and whether you can demonstrate insufficient provision. We can guide you through this determination, ensuring you meet all the necessary criteria to proceed.
3. Navigating Family Provision Claims
Close family members or dependents may contest a Will if they believe they’ve been inadequately provided for. We’ll help you build a compelling case by gathering evidence and presenting arguments aligned to your goals
4. Seamless Guidance Through the Process
From initiating the claim to presenting it in court, our team simplifies the complex legal processes, saving you time and stress. We ensure all necessary documentation, evidence, and expert opinions are gathered to support your case.
5. Tailored Solutions for Your Situation
Every case is unique, and we tailor our approach to your specific circumstances. Whether you seek to uphold your rights as a beneficiary or protect the integrity of a loved one’s wishes, we’ll work towards an outcome that aligns with your goals.
6. Minimising Risk and Costs
Without professional guidance, contesting a will can be risky, time-consuming, and costly. Our experience helps you avoid common pitfalls, resolve disputes efficiently, and focus on achieving results with minimal financial and emotional burden.
Looking for legal assistance for your case? Book your free consultation now
At Arcuri Turnball Lawyers, we have a long-standing history of handling Wills and Estate matters including Will disputes, with the utmost care and professionalism.
We understand the legal intricacies involved in cases like these and are equipped to guide you through each step of the process while protecting your rights and securing a fair outcome.
If you’re considering contesting a Will in Queensland or looking to defend against a claim, book your free consultation today to get the expert support you need.
