Posted September 17, 2015

How to contest a will

  The term ‘contesting a Will’ can mean many things.   You may be in the position to contest a will if anything related to these situations apply:

  •  You were not provided for under the Will (A  family provision claim)
  • You were not listed as a beneficiary of the Will and feel you should be
  • The Will is deemed to be fraudulent or false;
  • The Will was drafted under lack of legal capacity  (i.e. the deceased did not have a sound mind or disposition to sign the will)
  • The Will was not correct drawn and may not be lawful.

Who can contest a Will

When commencing a family provision claim, only those claimants who have an entitlement to make claim can lodge a claim.  The following person have an entitlement to make a claim:

  • Wife, husband, de facto partner of the deceased;
  • Children and step-children of the deceased;
  • Any person who was dependent on the deceased at the time of the deceased’s death

Time limits for contesting a Will

It’s critical that you obtain early legal advice if you wish to contest a Will.  There are strict time limits that apply in all States and Territories throughout Australia, particularly in relation to family provision claims.

In Queensland, there are two critical time limits that govern family provision claims.  Those time limits are:

  1. Notice must be provided to the personal representative of the deceased’s Estate providing notification of a family provision claim within six (6) months of the deceased’s date of death.
  2. Within nine (9) months of the date of the deceased’s death, a Court proceeding must be commenced and supporting affidavit material must be filed with the Court and served upon the personal representative of the deceased Estate. 

If the above time limits are not complied with, generally it will not be possible to make a family provision claim unless exceptional circumstances exist that explain why the time limits were not complied with.

If a Will is contested because of a defect, namely if the deceased did not have capacity to sign the Will at the time it was drawn or some other defect in the Will exists, it is critical that a caveat is lodged with the Supreme Court before probate or letters of administration is granted by the Court.

Will my case automatically go to trial if legal proceedings are issued?

The answer is ‘No’.  The Supreme Court of Queensland requires parties to attend a mediation process before any family provision claim proceeds to trial.   A large percentage of family provision claims resolve without having to proceed to trial.

Want to make a claim? – call Kerin Lawyers now

Wills and estate cases can be confusing but with the right support, you can work towards getting what you deserve. If you’re looking for Wills and Estate Lawyers in Brisbane, Kerin Lawyers has the experience to support and guide you in contesting for your rights. We also observe the following policies:

  • No Win, No Fee
  • No litigation loans
  • Free initial, no obligation consultations

Call us at 1300 LAWYER or 1300 529 937 and schedule an appointment today.


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