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Wills and Estates Law

Left Out Of A Will

Have you been unfairly left out of a Will? You may be entitled to apply for a share of the Estate.

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Left Out Of A Will?

Have you been left out of a Will? There are strict time limits for Contesting a Will.

 Each State of Australia has a different set of rules which apply when contesting a Will. There are different time limits and eligibility differs in each State depending on where the deceased died. In Queensland, you must notify the personal representative within 6 months from the date of death and bring any Court Application within 9 months from the date of death.

 In Queensland, if a person has been left without adequate provision from a deceased estate, they can contest the Will. The legal term for this kind of matter is a “Family Provision Application“. It used to be known as “Testator’s Family Maintenance”.

In order to successfully contest a Will, a person must be an eligible person in relation to the deceased’s estate. In Queensland section 41 of the Succession Act says that you need to be a ‘spouse, child or dependant’ of the deceased in order to make an application in the first place.

It is very important to get legal advice to find out whether you meet the criteria to apply and whether the circumstances mean that you have a reasonable prospect of obtaining provision from the Estate.

 If you believe you have been wrongly excluded from a person’s estate, please contact us for a no-obligation assessment of your position over the phone. Alternatively, if you are afraid of someone potentially making a claim against an estate, we can help you protect your interests.

Call us today on 07 5562 0444 to find out where you stand.

Answers

Frequently asked questions

In order to contest a Will in Queensland, section 41 of the Succession Act requires a person to fall within one or more of the following categories of eligible applicants:

  1. A SPOUSE, which may include the deceased’s:
    1. husband or wife;
    2. de facto partner;
    3. registered partner; and
    4. former husband, wife or registered partner.
  1. A CHILD UNDER 18 YEARS OF AGE, which may include the deceased’s:
    1. natural (biological) child;
    2. unborn child;
    3. lawfully adopted child; or
    4. stepchild.
  1. A DEPENDANT PERSON that relied on the deceased, such as:
    1. An elder parent;
    2. A parent of a child of the deceased (provided that the child is under eighteen);
    3. A grandchild or step-grandchild;
    4. former stepchild;
    5. brother or sister;
    6. niece or nephew; or
    7. foster child.
  1. You are an eligible spouse, child or dependant person to the deceased; and
  2. You do not think you have been left an adequate provision from the deceased’s estate for your proper maintenance and support.

The Court will consider a range of factors, including but not limited to:

  • The financial position of the beneficiaries (and any other claimants);
  • The nature and extent of your relationship with the deceased;
  • Any support provided to you by the deceased during his/her life;
  • Any statements or promises made by the deceased to you about how he/she would divide their estate;
  • The standard of living to which you are accustomed;
  • Any contribution you made to the size of the deceased’s estate; and
  • Any other matter which the court considers relevant.

A Family Provision Application should be filed in Queensland if:

  1. The deceased owned real property situated in Queensland,
  2. Lived permanently in Queensland at the date of his/her death; or
  3. Owns other assets registered or situated in Queensland.

Yes.

  1. 6 MONTHS from date of death to give notice of your intention to contest the Will

    If you intend to contest the will, you must give the executor written notice of that intention within 6 months of the date of death. After 6 months, the executor may distribute any monies held in the estate to the beneficiaries and finalise the administration of the estate. However, if you give notice outside the 6-month time frame and the estate has not yet been finalised, the executor should not distribute any funds until the limitations date.

    If a person wants to contest a Will in Queensland and gives notice after the six-month window, they can still give their notice outside this time.
  1. 9 MONTHS from date of death to file your claim in Court

    If the estate has not been distributed at the date when the notice is received, the executor should not distribute the estate until after the 9-month period.

    It is important to be aware that “out of time” applications can be made if the Court allows it.

You are entitled to ask for a certified copy of a deceased person’s Will if you are:

  • Mentioned in the Will, generally i.e. my children, or by name;
  • Mentioned in any earlier Will as a beneficiary, generally i.e. my children, or by name;
  • A spouse, parent or child;
  • if the deceased had died without a Will, a person who would be entitled to a share of the estate by law;
  • A parent or guardian of any child falling within categories 1 and 4 above;
  • A creditor;
  • A person who intends to contest the Will.

If you fall into one of the categories above, you are entitled to request a certified copy of the Will and the executor or the solicitor acting on behalf of the estate must provide it to you.

Not always.

In Queensland, costs are in the discretion of the court and decided at the end.

  • If the claim is successful, the estate will usually pay the applicant’s standard costs.
  • If the claim is unsuccessful, the Judge may order the applicant to pay the executor’s costs of defending the proceedings.

A person is considered to die intestate when they die without a valid Will.

In circumstances where a person does not have a Will or the Will has been lost, you would apply for letters of administration, which is when an administrator is appointed by the Court to distribute the estate according to the rules in the Succession Act.

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