Introduction
Contesting a will is a sensitive and complex process, especially during the difficult time of grieving the loss of a loved one. In Queensland, the process of contesting a will, formally known as making an application for further provision from an estate, is governed by specific legislation. This article aims to provide a clear overview of the steps involved in this process.
Understanding the Basis for Contesting a Will
Before initiating any legal action, it's crucial to understand the grounds on which a will can be contested in Queensland. Generally, a will can be contested if you believe that you have not been adequately provided for in the deceased's will. Eligibility to contest a will typically includes spouses, children (including adopted children and stepchildren), and dependents of the deceased.
Step 1: Determine Your Eligibility
The first step in contesting a will is to ascertain whether you are eligible to make a claim. Under section 41(1) of the Succession Act 1981 (Qld), eligible persons include:
A spouse of the deceased person (including de facto spouses and former spouses in some circumstances);
A child of the deceased person (including adult children, adopted children and stepchildren (including de facto stepchildren)); and
A dependent, being someone who was wholly or substantially maintained or supported by the deceased at the time of their death and at the time of the deceased persons death was:
a parent of the deceased person; or
the parent of a surviving child of the deceased person under the age of 18 years; or
a person under the age of 18.
Although the above categories may appear straightforward, nuances exist, particularly with respect to de facto spouses, former spouses, stepchildren and dependents.
If you incorrectly bring an application for further provision, your claim will be dismissed and you may be liable to pay the costs of the other parties involved in the litigation. For this reason, you should always consult an experienced estate litigation solicitor prior to filing an application for further provision in the Court.
Step 2: Consider the Time Limits
In Queensland, there is a strict time frame within which you must lodge your claim. You have 6 months from the date of death to notify the executor of your intention to contest the will. Following this notification, you have a further three months to file your application with the court, being 9 months from the date of death.
It's crucial to adhere to these time limits as failure to do so may result in your claim for further provision being dismissed.
In circumstances where the executor is anticipating a claim for further provision, they may take steps to distribute the estate at the first opportunity (e.g. immediately following 6 months from the date of death if no notice has been received or immediately on the expiry of 9 months if no application has been filed). If the estate is properly distributed in accordance with the above, there will be no assets left in the estate which can be subject to your claim and it will be dismissed.
If you have already missed these deadlines, it may still be possible for you to bring your application “out-of-time”, but you need to have an excellent reason for the delay and there must be assets remaining in the estate. In such a case, you should immediately contact an experienced wills and estate solicitor, as even a single day is critical when the time limits have expired.
Step 3: Gather Evidence
Compiling evidence is a critical step in contesting a will. This evidence should support your claim that the will does not make adequate provision for your maintenance and support. Information that may be relevant includes:
Your financial situation, including your income, assets and liabilities;
Your health, age and future needs;
The nature of your relationship with the deceased;
Contributions you made to the deceased's estate or welfare;
The size and nature of the deceased's estate; and
The needs of the competing beneficiaries.
You will need to provide objective evidence of your financial and health circumstances, so you should be ready to supply the following information (for you and your spouse if applicable) which will be included in your supporting affidavit:
Tax returns and notices of assessment.
Payslips.
Bank statements (loan accounts and savings accounts).
Superannuation balance statements.
Real estate valuations for any real property owned by you (your solicitor can assist with this).
Centrelink statements, particularly for pensioners.
Letter from your GP and other treating medical practitioners detailing the conditions you are presently being treated for (your solicitor can assist with this);
Proof of any contributions to the deceased’s estate (e.g. past transfers of money and/or real property).
Any information you have as to the assets forming part of the estate; and
Any information or documentation which demonstrates the extent of your relationship with the deceased person (e.g. letters, cards and phone records can be of assistance).
Step 4: Informal negotiations
Engaging in informal settlement negotiations is a pragmatic step to take prior to filing proceedings in the Court. In some circumstances, the dispute over the will can be resolved by way of Deed of Family Arrangement, without the need to proceed with formal litigation.
An early negotiated resolution greatly decreases the legal costs incurred and the time taken to resolve the dispute. It also significantly reduces the emotional toll on the parties and their families, which is an inevitable by-product of estate disputes.
However, it is not always possible or appropriate to engage in informal negotiations with the executor and any other parties involved and you should consult an experienced estate litigation solicitor before embarking on any such discussions. For example, the time limits might be fast approaching, which may necessitate the immediate filing of your application to protect your claim. Alternatively, the other party may not be genuinely open to an early settlement and might use these discussions merely as a fishing expedition, without any intention of settling. In this circumstance, you may prejudice yourself in future negotiations, which can reduce the amount of provision you ultimately receive.
Step 5: Filing your application for further provision in the Court
In Queensland, the requirements for applicants who file an application for further provision are prescribed by Practice Directions, either:
Supreme Court Practice Direction 8 of 2001; or
District Court Practice Direction 8 of 2001.
If your claim is likely to exceed $750,000, you will need to file the application in the Supreme Court of Queensland and follow (a) above. If your claim is less than $750,000, you should file your application in the District Court and follow (b) above.
It is critical that you follow the steps in the practice direction or you may have your claim dismissed or cause unnecessary expense to the parties involved, including yourself.
The first step, is to prepare, file and serve the following documents:
Originating Application; and
Affidavit of you in support of your application.
At the same time as you serve these documents on the executor or their solicitor, you must serve what is known as a Draft Directions Order, which (once agreed upon) becomes a court-ordered timetable governing the future conduct of the matter. The timetable sets out the dates by which:
the Executor must notify the other beneficiaries and any other eligible applicants of your application;
any interested beneficiaries or eligible applicants must join the proceedings if they wish to be separately represented or to claim further provision (as well as you);
the Executor and any other parties must file their material in affidavit form;
any further material or affidavits must be filed;
a without prejudice settlement conference must take place;
the parties must attend a mediation; and
if the matter is not resolved at mediation, how and when the matter is to be listed for trial.
Step 6: Mediation
Mediation involves a neutral third party, usually a barrister or solicitor, who helps the disputing parties reach a settlement. It is a less formal and often less expensive process than having the matter determined at a final hearing by a judge.
Ordinarily, the parties can expect to be attending mediation within 5 to 8 months of the application being filed. In the writer’s personal experience and in studies published by various authors, approximately 85-95% of cases settle at or before mediation in Queensland. Interestingly, only around 40% of these matters settle at mediation in New South Wales.
Step 7: Court Proceedings
If mediation is unsuccessful, the proceedings will be listed for final hearing before a judge. The hearing is likely to take between 1 and 5 days, depending on the number of witnesses to be called and the complexity of the matter.
During the court proceedings, the trial judge will consider all evidence and decide whether the will makes adequate provision for you. If the court finds in your favour, it may order that provision be made from the estate to meet your needs.
Step 7: The Court's Decision
The court's decision will depend on a comprehensive analysis of the evidence presented. If the court decides to alter the distribution of the estate, it will issue orders outlining how the estate should be distributed to ensure adequate provision is made for you.
In most cases, the further provision awarded will be in the form of a lump sum payment. However, the court may award any of the following or a combination of them:
a lump sum payment;
a percentage of the estate;
a real property (e.g. a house);
personal property (e.g. shares; proceeds of an account; various household chattels and personal effects); or
a right to reside or life interest in real property.
Conclusion
Contesting a will in Queensland is a legal process that requires careful consideration and adherence to specific procedures. It's highly advisable to seek legal advice from a wills and estates solicitor who can guide you through the process, ensuring that your claim is filed correctly and within the legal time frames. Remember, each case is unique, and the outcome will depend on the specific circumstances of your situation.
By Sean Powell
Sean leads the Estate Litigation Team at Robbins Watson Solicitors, a law firm specialising in contested wills and estates He has a Masters Degree in Applied Law, with a specialisation in Wills and Estates.
You can book a free case appraisal with Sean or one of our other Gold Coast Estate Litigation Lawyers here. You can also select Begin Online to get started with your estate dispute online.