If you have been excluded from a Will, it probably seems like a slap in the face. You may be feeling hurt and angry – especially if the person who passed away was a parent or another close relative. As a result, you may be wondering if there’s anything you can do. In Queensland, the answer is “yes.” In fact, there are a few ways in which you can challenge – or contest – a Will.
One way to do so is by making a Family Provision Application – but only in certain circumstances.
You may qualify to make this type of application if you were:
- The deceased’s spouse (including a de facto partner);
- The deceased’s child (including step and adopted children); and/or
- The deceased’s dependant (In order for any person to be a “dependant” they must have been “wholly or substantially maintained” by the deceased person at the date of the deceased person’s death).
and your needs have not been properly addressed through his or her Will, or because he or she died without making a valid Will.
If you meet any of these criteria and wish to pursue this option, you have nine months from the time the person died to file this type of application. However, it is important that you notify the Executor of the estate that you intend to do so as soon as possible. This is because he or she has the authority to make the allocations specified in the Will and wrap up related matters six months after the person’s death as long as he or she has not been notified about any potential claims on the estate.
Missing this deadline does not automatically invalidate your ability to make a Family Provision Application. However, you’ll have to convince the Court that you had a valid reason for missing the deadline before you can proceed.
It is also important to note that just because you feel you have been treated unfairly doesn’t mean the Court will agree. Ultimately, it is up to the Court to decide whether or not the Will fully addresses your needs. It will make this determination based on:
- Any provisions previously made to you by the estate
- Your financial situation and other circumstances specific to your case
- How much money the estate has on hand
- Whether anyone else is contesting the Will based on lack of adequate provision
- Your relationship with the deceased
Courts will also consider challenges based on some other contentions. The first is that the person who created the Will – and left you out of it – was bullied, intimidated or coerced into doing so. The second is if the person who made the Will in question was mentally or intellectually capable of doing so. And lastly, the Court will consider a contention that the person who made the Will made a legally binding agreement to craft the Will in a certain way, a breach of the agreement ensued and you were adversely affected.
Keep in mind, however, that you can only challenge a Will in Queensland if the person who died had land and/or a home in the State; or if he or she was a permanent resident of Queensland at the time of death, but held his her assets elsewhere.
Having said that, you do not have to live in Queensland in order to contest a Will here. In fact, you can do so without leaving home. Before you initiate the process, however, it is important that you fully understand it – so if you do live somewhere else, be sure to consult a Queensland lawyer before pursuing this option.
Finally, you may be wondering how much all of this costs. Generally, the Court decides who must pay the legal costs associated with the contention of the Will. In most cases, if the Judge rules in your favour, the estate will pay for any legal costs you have incurred. However, if the ruling goes against you, the Court may order you to pay the legal costs incurred by the Executor. This underlines the importance of seeking legal advice from a reputable law firm who have experience in this type of litigation.
Clearly coping with the death of a loved one is never easy – and discovering that you have been left out of his or her Will while you are grieving complicates matters even further. If you feel that you have been wrongfully excluded, it is important to consult a qualified lawyer about these and any other legal remedies that may be applicable to your case.