Who can challenge a Will?
Under the Act only the following categories of “eligible persons” are entitled to challenge a Will and seek further provision from the Estate:
- A husband or wife of the deceased person;
- A defacto spouse of the deceased person provided that person was living together as a couple on a genuine domestic basis for a continuous period of at least 2 years as at the date of the deceased person’s death;
- A child of the deceased person (including an adopted child or a step-child);
- A former spouse of the deceased person. For instance, a separated spouse who is not yet divorced and was continuing to receive maintenance from the deceased person; or
- A person was wholly or substantially maintained by the deceased person, who was a parent of the deceased or a parent of a child under 18 years of the deceased person or a person under 18 years of age.
How to change a Will
In order for a person to challenge a Will in Queensland, that person must establish that they are an “eligible person” , and that they have been left inadequate provision from the deceased person’s Estate. The eligible person must also establish that the provision is in need of the person’s maintenance and support. A person’s needs for further provision varies on a case by case basis and legal advice should also be sought before commencing Contested Estate proceedings.
What will the Court decide?
The Court usually decides on whether or not adequate provision has been provided for an eligible person. In arriving at any decision, the Court usually takes into consideration the following circumstances:
- The size of the estate;
- The dependency of the eligible person on the deceased person;
- The length and nature of the eligible person’s and other beneficiaries’ relationship with the deceased person;
- Any health issues of the eligible person and other beneficiaries; and
- Whether there has been any disentitling conduct such as estrangement, assault, abuse, infidelity etc.
The Court makes orders based on what it believes is fair and equitable when all circumstances are taken into consideration.
What can the Court do?
The Court has the power to rewrite a deceased person’s Will and has the ability to change any inheritances received by beneficiaries under the Will. The Court is usually limited to making these changes in order to satisfy that adequate provision is provided to an eligible person where circumstances warrant.
In Queensland there are time limitations in which an eligible person may challenge a Will:
- Firstly, an eligible person has an obligation to notify the Executor of their intention to challenge the Will within 6 months from the date of death;
- If the matter cannot be resolved through negotiation, then the eligible person must file and serve Court proceedings on the Executor within 9 months from the date of death;
- If the eligible person does not do so within those time limits, then they may be prevented from contesting the Estate without first obtaining the Court’s permission to institute legal proceedings.
If you believe you are entitled to challenge a Will or have been left inadequate provision in an Estate, then contact OMB Solicitors immediately to ensure your rights are protected and to ensure you do not miss any statutory time limitation periods.