The process of challenging a will in Queensland can be intricate and emotionally charged. To challenge the Will often arises from doubts that the deceased’s will might not truly mirror their intentions at the time of its conception, due to undue influence or lack of capacity. To understand these complexities can help ease some of the tension involved. This guide serves may be useful for anyone contemplating challenging a will. It sheds light on the legal basis for a challenge, the procedural steps, and how to secure expert legal support from proficient will lawyers and solicitors expert in probate in Queensland.
Unravelling the Legal Grounds for Challenging a Will in Queensland
The authenticity of a Will can be disputed on numerous legal grounds in Queensland. Each of these grounds relates to the circumstances surrounding the drafting of the Will or the state of the testator (the individual who created the Will). Here’s an expanded look at why a Will might be subject to challenge:
Insufficient Testamentary Capacity
For a Will to be valid, the person drafting it must have testamentary capacity. The courts have determined that testamentary capacity means having a “sound mind, memory, and understanding.” Specifically, this includes the ability to:
- Grasp the nature and consequences of making a Will;
- Recognise the scope of the property being distributed; and
- Understand and evaluate the claims of those who may have an entitlement to the estate.
For example, a testator must have sufficient memory to recall the individuals who might reasonably be considered beneficiaries and the capacity to understand their relationships and claims.
The testator’s decisions must not be influenced by mental disorders or delusions. In some cases, even someone who is generally incapable of making a Will might have the necessary capacity during moments of clarity, known as lucid intervals.
Challenging a Will on the basis of capacity can be difficult, as the testator is no longer available to provide insight. Courts often rely on medical evidence and expert reports to assess the testator’s mental state at the time the Will was signed.
Undue Influence
A Will should reflect the genuine wishes of the testator, free from external pressure or manipulation. If compelling evidence shows that the testator was coerced into making decisions they would not have otherwise made, this is known as undue influence and can serve as grounds for a legal challenge.
Absence of Proper Execution
The Succession Act 1981 (Qld) outlines the strict requirements for validly executing a Will. These include the testator signing the Will in the presence of two witnesses, who must also sign the document (s 10 of the Succession Act 1981). Failure to meet these formalities can render the Will invalid.
Fraud or Forgery
In some rare cases, a Will may be fraudulent or forged. Fraud occurs if someone deliberately deceives the testator or alters the Will for their own gain. A forged signature on a Will is another serious ground for challenge and, if proven, can invalidate the document.
What If the Will Cannot Be Challenged?
If the grounds for challenging the validity of the Will are weak, there may still be an option to contest its terms by filing a Family Provision Application. This type of claim is based on the argument that the Will fails to make adequate provision for someone eligible to receive support from the estate (Succession Act 1981 (Qld), s 41). Eligible claimants include spouses, children (including stepchildren), and financial dependants.
The court considers factors such as the claimant’s financial circumstances, the size of the estate, and the relationship between the claimant and the deceased. Contesting a Will focuses on fairness rather than validity and can lead to a redistribution of the estate to provide for the claimant.
Steps for Challenging a Will in Queensland
If you suspect there are valid reasons to contest a Will, Queensland’s legal framework provides a systematic approach:
- Seek Legal Advice
Obtaining expert advice is essential. At Jacaranda Law, we offer a free initial consultation where you can discuss your concerns and receive guidance on your legal rights and next steps. Importantly, time limits apply for taking action in Will disputes, so seeking legal advice as soon as possible can help protect your entitlements and ensure you do not miss crucial deadlines. - Gather Evidence
Strong evidence is critical. This may include medical records, witness statements, and documentation related to the drafting and signing of the Will. - Negotiations
Before proceeding with an application, it is worth considering making an early offer or engaging in negotiations to settle the matter without formal litigation. This can help avoid the stress and costs associated with court proceedings. Successful negotiations can lead to mutually agreeable outcomes and may resolve the dispute without the need to file a formal claim. Additionally, the Queensland legal system encourages resolving disputes outside of court whenever possible. . - File a Claim
If mediation does not resolve the dispute, the next step is to file a formal claim in the Supreme Court of Queensland. Time limits apply, so it is important to act promptly (Succession Act 1981 (Qld), s 44). - Court Proceedings
During court proceedings, both parties present their evidence and arguments. The judge will make a decision based on the evidence and legal principles. However, it is important to note that at any time during the proceedings, the parties may reach a settlement agreement to resolve the dispute without awaiting a formal judgment. This can save time, reduce costs, and provide more control over the outcome for both parties. - Appeal
If you believe the court’s decision was incorrect due to a legal error, you may be able to lodge an appeal. This should only be pursued with advice from your solicitor.
What Sets Jacaranda Law Apart
Jacaranda Law understands that navigating a Will dispute can be overwhelming, especially during a time of grief. Our client-centred, focused, and reliable team offers practical legal advice tailored to your circumstances. We provide flexible, fixed-fee options and personalised support, Additionally, we make it convenient by offering in-person, at-home, or Zoom appointments.
We invite you to book your free initial consultation today by clicking here to see how we can assist you in shielding your legacy and securing peace of mind.
Locating Expert Will Dispute Lawyers
To effectively challenge or contest a Will, partnering with a capable legal team is crucial. Here’s why Jacaranda Law should be your first choice:
- Client-Centred Approach: We prioritise your goals and provide clear, actionable advice.
- Exclusive Focus: Our practice is dedicated to estate planning, probate, and estate litigation.
- Convenience: We can meet at a location that suits you or conduct consultations online.
- Transparency: Our fixed-fee structure ensures there are no unexpected costs.
Don’t Delay—Act Now
Whether you are concerned about the validity of a Will or believe you have been unfairly excluded, time is of the essence. Contact Jacaranda Law today to discuss your options and ensure your rights are protected.
The information provided in the document is a general summary and is not intended to be nor should it be relied upon as a substitute for legal or other professional advice. You should make an appointment with Jacaranda Law to receive appropriate tailored advice for your specific situation.
