When you hear of somebody contesting an Estate or challenging a Will, it is usually made by an eligible person entitled to contest the Estate or challenge the Will.
Who can challenge a Will?
The categories of persons in Queensland to challenge a Will are limited to:
- A husband or wife of the deceased person;
- A De facto 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;
- 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.
What is involved?
Each State has different laws relating to people who can make a claim against a Willmaker’s Estate. In Queensland it is dealt with under Part 4 of the Succession Act 1981 (Qld). Challenging a Will usually refers to a dissatisfied relative of a Willmaker who wants further provision from the Estate. The formal name for challenging a Will is known as making a Family Provision Application (FPA).
When a dissatisfied relative makes a FPA on an Estate, they, as the applicant, must produce evidence to the Court to show they are worthy of further provision from a Willmaker’s Estate.
Contesting an Estate is emotionally stressful and draining for all parties involved and is usually very expensive. In most cases the Estate ends up paying or the Court orders it to pay the costs of the Estate Litigation.
With proper Estate Planning, a Willmaker can eliminate or at least reduce the risk of a relative commencing an FPA after their death.
Appropriate Estate Planning can help to ensure your Estate is not contested following your death and also is administered and managed in a cost effective manner.