Who Can Contest A Will? (Qld)

Many people are unsure of their rights under succession and testamentary law in Queensland. Some people assume that wills are inviolate documents that cannot be overturned, whilst others assume that anyone who is aggrieved by a will can contest its provisions. The real situation is somewhere in between. Wills are solemn documents that the court is reluctant to disturb, but the Succession Act 1981 stipulates that the deceased’s spouse, children and dependents can dispute the provisions of a will if the existing distribution creates hardship for the claimant. This article expands on the categories of eligible claimants, explaining who can contest a will in Queensland.

Who Can Contest A Will In Queensland?

Section 41 of the Succession Act 1981 lists those who can make a Family Provision Application to the Supreme Court. Only a spouse, child or dependent of the deceased can contest a will in Queensland.

A Spouse Can Contest A Will

Under succession law, the term “spouse” refers to more than the husband or wife of the deceased. A spouse also includes a partner in a de facto relationship. The Family Law Act 1975 defines a de facto relationship as two people who are not family or married, living together on a genuine domestic basis. The other type of spouse is a partner in a registered relationship. The Relationships Act 2011 allows for civil partnerships in Queensland for couples who are not married but wish to register their relationship for social security purposes. It is often not widely understood that a former spouse of a marriage, de facto or registered relationship can also contest a will in Queensland.

A Child Can Contest A Will

A child of the deceased is also eligible to make a Family Provision Application. The category of children includes any biological child of the deceased, whether or not the parents were married. A child who is not yet born when the testator passes away also has standing to claim, if they survive the deceased for at least a thirty-day period. If the testator adopted a child under the terms of the Adoption Act 2009, then the child has the same rights as the biological children of the deceased. Unlike in other jurisdictions, in Queensland, the term “child” extends to include a stepchild of the deceased, who also has the right to contest a will irrespective of whether they were also a dependent of the deceased.

Dependent

A dependent of the deceased is the only other type of person who can contest a will in Queensland. A dependent may be the parent of the deceased, a parent of the deceased’s minor child, or any person who was maintained by the testator before their death as long as they were younger than eighteen years of age. This last category of dependent might include a former stepchild, foster child, grandchild or step-grandchild of the deceased, a sibling of the deceased, niece or nephew. The defining characteristic of a dependent is that the testator was wholly or substantially maintaining the claimant before the testator passed away.

Establishing Maintenance

Maintenance is financial assistance that provides for someone’s living expenses. To qualify as a dependent, the claimant must demonstrate that the deceased provided at least a substantial level of maintenance that allowed them to maintain their standard of living. For example, if the testator regularly paid someone’s rent or provided rent-free accommodation because the dependent did not have the financial resources to provide shelter for themselves, then that would be likely to be accepted as evidence of maintenance.

Time Limits To Contest A Will

An eligible person can only contest a will in Queensland during statutory time limits. A claimant is obligated to notify the executor of the estate that they intend to make a Family Provision Application before six months has passed since the death of the testator. This will stop the executor from distributing the assets of the estate to the beneficiaries until the claim is settled. If the claimant notifies the executor outside this time frame, and the estate has not yet been distributed, the executor must still suspend administration of the estate.

A Family Provision Application must be lodged in the nine months following the testator’s death unless the Supreme Court allows an out of time lodgment. The court will only allow a late application if there is sufficient justification for the delay. For example, if the claimant was genuinely unaware of the testator’s death, then a delayed application is understandable. The court will make a decision in light of the degree of delay and what stage the administration of the estate has reached. If the executor has already distributed the estate then the court is less likely to hear a late Family Provision Application.

If you have questions about who can contest a will in Queensland, we can provide advice and help you through the application process. Our contested wills team has extensive experience with all aspects of succession law and can guide you through any uncertainty. Please contact or telephone our offices on 1300 038 223 to arrange an appointment to discuss the particulars of your case.