Wills & Estate Disputes

Practice Areas

Wills & Estate Disputes

Dealing with the loss of a loved one is always a difficult time, but having to also deal with the Estate can be particularly challenging.

Whether you are the Executor of the Estate under a Will, a family member, or close friend, should you have concerns regarding a Will or an Estate, we can assist you.

What are your concerns?

FAMILY PROVISION CLAIMS

Are you concerned that you may not have been adequately provided for under a deceased’s Will?  You may be eligible to make a Family Provision claim in Queensland if you meet one of the following criteria:

  1. You are a spouse – meaning the husband or wife of the deceased, a de facto partner who lived together with the deceased for a continuous period of two years, or a former spouse of the deceased who had not remarried and was entitled to or receiving maintenance from the deceased;
  2. You are a child – meaning a biological child, an adopted child or a stepchild of the deceased; or
  3. You are a dependent – meaning a person who was being wholly or substantially maintained or supported by the deceased at the date of the deceased’s death being:
  • a parent of the deceased;
  • a parent of a surviving child under the age of 18 years of the deceased; or
  • a person under the age of 18 years.

A claim for Family Provision must be notified to the Estate and filed with the Court within strict time limits:

  • Estate notification – within 6 months from the date of death;
  • Court claim commenced – within 9 months from the date of death.

The Court has the discretion to allow a Family Provision claim filed more than 9 months after the date of death to be filed and heard, but only in certain, limited circumstances.

Once commenced, there is a two-stage process in determining a Family Provision claim:

  1. The Court must firstly consider whether the deceased failed to make adequate provision for the proper maintenance and support of the applicant; and
  2. If the Court is satisfied that adequate provision has not been made, the court then determines what provision should be made for the applicant, by considering all relevant factors, including the relationship between the applicant and the deceased and the current beneficiaries named in the Will.

If you believe that you, or someone you know, have not been adequately provided for under a deceased’s Will, please seek legal advice early to avoid missing the strict time limits.

INTESTACY

If someone does not have a valid Will when he or she passes away, then Part 3 of the Succession Act 1981 (Qld), also known as the Intestacy Rules, will apply. These Rules govern who can administer the Estate, as well as the distribution of the Estate.

If there is no surviving spouse or children of the deceased, then provision is made for the deceased’s  parents, brothers and sisters, nephews and nieces, then grandparents, then uncles, aunts and cousins.

To be entitled to share in an intestate Estate, a beneficiary must survive the deceased person by at least 30 days.

Take note that the following persons in relation to the deceased are not provided for under the Intestacy Rules:

  • Step-Mother or Step-Father;
  • Mother-in-law or Father-in-law; and
  • Relatives more remote than first cousins.

UNDUE INFLUENCE

Undue influence occurs when a person is pressured or coerced into making a Will, or giving a gift under a Will, that does not accurately reflect that person’s own wishes. Usually the person subjected to the undue influence is vulnerable, and may be ill, elderly, or dependant on other people.

An allegation of undue influence is a serious matter, and if proven, will usually invalidate the entire Will.

If a Court finds an entire Will is invalid as a result of undue influence, then should an earlier Will of the deceased exists, then that Will may apply.  Otherwise, if there is no earlier Will, the Intestacy Rules will be relevant  {link to open Intestacy drop down}.

If you believe that someone’s Will, or any gift given under it, may have been the product of undue influence, then you should obtain legal advice as soon as possible. You should also keep very detailed records of everything that has occurred in case that information is needed as evidence in any Court proceeding.

INCAPACITY AND STATUTORY WILLS

When a person is alive, but for some reason lacks the capacity required to make a Will, the Supreme Court has the power to make a Statutory Will for that person under the Succession Act 1981 (Qld).

Also, in circumstances where someone has made a Will earlier, when he or she previously had capacity, but has since lost that capacity (for example, due to an  illness or a disease like dementia, or an accident which has caused a brain injury ), the Court can alter or revoke that person’s Will, if necessary.

Any person can apply to the Court for a Statutory Will on behalf of another person (“the testator”), but the Court must be satisfied that the applicant is the appropriate person to be applying on the testator’s behalf. There is a two stage process in obtaining a Statutory Will:

  1. The applicant must make an application to the Court seeking leave (asking for the Court’s permission) to make the “main application”. During this stage, the Court must be satisfied that the application for a Statutory Will is being made solely in the testator’s interests, and is not being made by the applicant for an improper reason.
  2. If the Court grants the applicant leave to make the main application after the first stage, then the applicant must provide a draft of the proposed Will, alteration or revocation, along with satisfactory evidence of the testator’s lack of capacity to make their own Will and other relevant information. The Court will then place itself in the position of the testator with a view to determining the testator’s likely wishes.

Where a person has passed away, but you hold concerns about the testamentary capacity of the deceased to have made a Will which is produced after death, then you may need to challenge a Grant of Probate which is sought to be obtained for that Will.

Testamentary capacity usually refers to the essential requirement that a person making a Will must be of sound mind, memory and understanding; that is, they must know and understand what they are doing with their property, and not be delusional or suffering from a mental illness at the time they sign their Will.

Examples of challenges to Wills on the basis of lack of testamentary capacity occur most frequently where the Will-maker is ill, in hospital, on medication or elderly, or suffering from dementia.

If you, or someone you know, need to consider undertaking the Statutory Will process, or have concerns about the capacity of someone who made a Will, please contact our Toowoomba Lawyers for legal advice.

STAUTORY WILLS FOR MINORS

Where a person is under the age of 18 years but is able to express a wish to make a Will, then in certain circumstances the Supreme Court has the power to make a Statutory Will for a child. To do so, the Court must be satisfied that the child understands the nature and effect of the proposed Will, including the extent of any property disposed of under that Will.

If you, or someone you know, need to consider undertaking the Statutory Will process for a minor, please contact us for legal advice

DEFENDING ESTATE CLAIMS

If you are the Executor of an Estate and have received notice of a dispute, or that someone intends to commence legal action against the Estate, then we can help.

Such legal action may involve allegations of lack of testamentary capacity of the deceased to have made the Will, undue influence, or a Family Provision Claim.

It is better for all parties to try and resolve an Estate dispute without commencing Court proceedings in order to avoid the significant costs of litigation. That said, in some circumstances, litigation in the Court may unavoidable.

If you require legal advice regarding defending the Estate against a claim, please contact us for legal advice.

    Contact Information

    Direct Line: 07 4616 9818