Introduction
Disputing a Will can be an emotionally charged and legally intricate process. Whether you’re challenging the validity of a loved one’s Will or contesting the distribution of their estate, understanding the distinctions between these processes is crucial. This guide breaks down the steps involved, providing answers to common questions, valuable insights, and actionable steps to help you understand your rights and make informed decisions.
Challenging a Will vs. Contesting a Will: Key Differences
Challenging a Will: This refers to disputing the legal validity of the Will itself. Common grounds include:
- Lack of testamentary capacity (the deceased was not of sound mind when making the Will).
- Undue influence (someone pressured the deceased into changing their Will).
- Fraud, forgery, or procedural errors (such as the Will not being signed correctly).
Importantly, there are no statutory time limits for challenging a Will in Queensland, but it should be done as soon as possible to avoid complications.
Contesting a Will: This involves accepting that the Will is valid but seeking a larger share of the estate. This is typically done through a Family Provision Application (FPA) when the applicant believes proper provision has not been made from the testator to an eligible beneficiary.
In some cases, both a challenge and a contest may be necessary. For example, a person may challenge the validity of a Will but, if that challenge fails, seek to contest the terms of the valid Will in a seperate application.
Who Can Dispute a Will in Queensland?
Eligibility to Challenge a Will
A person can challenge a Will if they have an interest in the estate. To have an interest, you must:
- Be mentioned in the deceased’s current or earlier Will.
- Be entitled to a share of the estate if the deceased died without a valid Will (intestate).
Although there are no statutory time limits for challenging a Will, it is advisable to do so before probate is granted. Once probate has been granted, extra steps may be required, which can incur additional costs and procedural hurdles, and for practical reasons, because the executor is authorised to deal with the estate assets and distribute funds from the estate once probate is issued.
Eligibility to Contest a Will
Under the Succession Act 1981 (Qld), eligible persons who can contest a Will by making a Family Provision Application include:
- Spouses (including de facto and same-sex partners).
- Children (biological, stepchildren, and adopted children).
- Dependents who relied on the deceased for financial support.
Key Time Limits for Contesting a Will
It’s important to understand the time limits for contesting a Will, as strict deadlines apply:
- Notice of claim: Must be given within 6 months from the date of death.
- Application to the court: Must be filed within 9 months from the date of death.
Failing to meet these deadlines may result in losing your right to make a claim.
Steps in Disputing a Will
1. Seek Legal Advice Early
Understanding your eligibility and options is essential. An estate litigation lawyer can guide you through whether to challenge the validity or contest the terms of the Will and explain the process. At Jacaranda Law we offer free initial consultations for anyone who would like to discuss their options. Click here to make a free appointment with a lawyer now.
2. Prepare Documentation
Gather evidence such as:
- Medical records to show the deceased’s mental state (for challenges).
- Financial records to demonstrate dependence (for contests).
- Correspondence or witness statements can sometimes assist.
3. File the Required Forms
For a Family Provision Application, the following forms must be filed to the relevant Court:
- Form 5 – Originating Application.
- Form 46 – Affidavit.
- Draft direction Orders.
These must comply with the Uniform Civil Procedure Rules 1999 (Qld) and must also include draft direction orders as required by the relevant Practice Directions issued by the Courts. The affidavit must strictly comply with the rules of evidence regarding admissible evidence, for example they must not contain hearsay.
4. Mediation
Mediation is essentially a mandatory step before a court hearing. The standard directions order includes a clause requiring an dispute resolution plan, including mediation. However, while parties must attend mediation, they are not obligated to reach a resolution.
5. Court Proceedings (if necessary)
If mediation fails, the matter proceeds to court. For challenges, the burden of proof lies on the person disputing the validity. For contests, the applicant must demonstrate that they have not been adequately provided for under the terms of the Will.
Common Questions About Disputing a Will
How Much Does It Cost to Dispute a Will?
Costs vary based on the complexity of the case. Fees can include legal representation, expert reports, and court costs. Some law firms, like Jacaranda Law, offer fixed-fee arrangements or defer payment until the case concludes. At Jacaranda Law, we can provide a detailed quote for costs once we have met with you in a free consultation.
What Happens if the Court Invalidates the Will?
If a Will is declared invalid, the estate is distributed according to:
- An earlier valid Will (if one exists).
- Intestacy laws if no valid Will exists.
Can Mediation Resolve a Will Dispute?
Yes, mediation can resolve disputes without proceeding to trial. It saves time, reduces costs, and helps maintain family relationships.
Strategies for Success When Disputing a Will
- Gather Evidence Early: Collect key documents, such as medical records and witness statements.
- Act Quickly: Meet all time limitations and pursue challenges promptly to avoid losing access to crucial evidence.
- Understand the Burden of Proof: Know that the burden lies on you to provide sufficient evidence for your claim.
- Weigh the Emotional and Financial Costs: Consider the impact of the dispute on relationships and costs.
- Consider Settlement Options: Sometimes, negotiating a settlement is more practical than proceeding to trial.
Legal Options for Disputing a Will
For Challenging a Will
- Disputing Validity: File court proceedings if you suspect fraud, undue influence, or lack of capacity.
- Mediation: Engage in mediation to explore resolutions before a hearing.
For Contesting a Will
- Family Provision Application (FPA): Apply for a larger share if you believe the Will inadequately provides for you.
- Negotiated Settlements: Participate in court-mandated mediation to attempt resolution before trial.
Conclusion
Disputing a Will in Queensland can be complex, but understanding the differences between challenging validity and contesting distribution is key. With legal guidance, thorough preparation, and a clear understanding of your rights, you can navigate the process effectively. At Jacaranda Law, we offer personalised support, helping you through each step—whether resolving matters at mediation or representing you in court.
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 recieve appropriate tailored advice for your specific situation.
