Making a will is an important step in estate planning, but what happens if you believe that a will is not valid? If you are considering contesting a will in QLD, it is important to understand the process and the grounds on which you can challenge the will. In this blog post, we will discuss the steps involved in contesting a will and what you need to prove to have the will overturned.
Who can contest a will in Queensland?
In Queensland, section 41(1) of the Succession Act 1981 defines an eligible person to include spouses, children, and other relatives of the deceased who were dependent on the deceased person.
However, a dependant of the deceased person does not include anyone who may have relied upon the deceased financially. To establish your eligibility as a dependant you must show you were wholly or substantially maintained or supported by the deceased when they passed away.
Also, you must be a person under the age of 18 years, or the deceased’s parent; or the parent of a surviving child under the age of 18 years of that deceased person.
What are the grounds for contesting a will in Queensland?
Once you have established that you are eligible to make a claim, then you must demonstrate that the will did not make adequate provision for your “needs” and also the appropriate provision which should be made.
In Queensland, there are several grounds on which a will can be contested.
These include:
- The will was not properly executed according to the requirements of the Succession Act 1981.
- The deceased did not have the mental capacity to make a will
- The deceased was forced or coerced into making the will
- The will does not reflect the true wishes of the deceased
If you are considering contesting a will, it is important to seek legal advice as soon as possible. An experienced lawyer can help you understand the process and advise you on the best course of action for your particular case.
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How long do you have to contest a will in Queensland?
In Queensland, you must file a Notice of Objection to the will within 28 days of the date on which the will was lodged with the Court. The notice must state the grounds on which you are objecting to the will and must be served on all parties to the will.
How to challenge a will in Queensland
If you want to challenge a will, the first step is to file a Notice of Objection with the Court. This notice must be filed within 28 days of the date on which the will was lodged with the Court. The notice must state the grounds on which you are objecting to the will and must be served on all parties to the will.
Once the notice is filed, the Court will set a date for a hearing. At the hearing, you will need to prove your grounds for objecting to the will. The burden of proof is on you to show that the will is not valid. The Court will consider all evidence presented and will make a decision on whether or not the will is valid.
If you are successful in having the will overturned, the estate will be distributed according to the terms of the previous will, if there is one. If there is no previous will, the estate will be distributed according to the laws of intestacy.
What does the court consider?
The court will consider several factors when determining whether or not to overturn a will, including:
- The grounds on which the will is being challenged
- The evidence presented by both sides
- The wishes of the deceased as expressed in the will
- The interests of all parties involved
What is the cost of contesting a will in Queensland?
The cost of contesting a will in Queensland can vary depending on the complexity of the case and the amount of money at stake. It is important to seek legal advice as soon as possible to ensure that you are taking the best course of action for your particular case.
Contesting a will can be a complex and costly process. It is important to seek legal advice before taking any action.
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Are you looking to contest a will on the Sunshine Coast?
If you live on the Sunshine Coast, or Queensland and you have been left out of a will or you believe that you are entitled to a larger share of an estate, contact Dr John Cronin or Nadine Love today on 07 5455 6347 or email: admin@anumis.com.au to connect with one of our experienced wills and estate lawyers. We can help you understand your rights and options and guide you through the process of contesting a will.
Nadine Love is a lawyer and part of “the dream team” at Anumis Legal. She completed her law degree at Southern Cross University and received the New South Wales Bar Association Prize for Evidence and Civil Litigation. In addition to her passion for family law and therapeutic jurisprudence Nadine is also a celebrated international author, personal & business coach, drama therapist and motivational mentor. Nadine’s interests encompass swimming and walking in the rainforest with golden retriever Anu, and Australian Shepherds, Lex, and Onyx. She combines her strengths of advocacy, empathy and out-of-the box problem solving to support her clients to achieve their best legal outcomes.