The death of a family member is a difficult time which can put a strain on relationships or deepen existing tensions.

If the deceased person’s Will doesn’t make adequate provision for you, or if you are left out entirely, it can be even more stressful.

If you find yourself in this situation, you may have the right to contest the Will.

What is a family provision claim?

If you have been left out of a will or inadequately provided for in Queensland, you may be eligible to make a family provision application under the Succession Act 1981. Eligible individuals, such as spouses, children, or dependents, must act quickly, with strict deadlines: notifying the executor within 6 months and filing a court application within 9 months of death.

To contest a will, an individual must demonstrate that they have not received adequate provision from the deceased’s estate. The court will consider several factors, including the claimant’s financial needs, their relationship with the deceased, the size of the estate, and the deceased’s obligations to the person claiming.

Are you eligible to make a family provision claim?

Under the Succession Act, only persons who qualify as eligible persons under the Act may apply to the Court. There are six categories of eligible persons:

1. The wife or husband of the deceased at the time of death;
2. A person in a de facto relationship with the deceased;
3. A child of the deceased, including a stepchild or adopted child;
4. Former wives and husbands of the deceased;
5. A person who was wholly or substantially maintained or supported by the deceased;
6. A person who was wholly or partly dependent on the deceased at the time of death.
   
   

To receive a benefit from the estate, you must show that the deceased had an obligation to provide for you and that you have not been adequately provided for.

Potential Outcomes

1. Variation of the Will: The court may change how the estate is distributed and order additional provision for the claimant.
2. Mediation and Settlement: Disputes may be resolved outside court through negotiation or mediation.
3. Legal Costs: Contesting a will can involve legal costs. The court may decide if costs are paid from the estate.

Is there a time limit for contesting a will?

Yes. A strict time limit applies.

You must notify the executor in writing within 6 months of the date of death. The court application must be filed within 9 months.

Late applications may be accepted, but the court will consider reasons for delay and whether the estate has already been distributed.

Take steps to seek appropriate advice

Seeking legal advice from an experienced estates litigation lawyer is important to understand your rights and options.

Dane Thornburgh is a senior associate solicitor at Quinn Law Group providing estates litigation advice regarding family provision claims.

If you have been left out of a will, you can contact Dane to protect your rights.

Contact here
Phone: 0404 100 434
Email: dane@danethornburgh.com.au