Challenging a will

When a person writes their will, they often assume that it cannot be contested and that their estate will be distributed in accordance with their wishes. While this is generally the case, it is important to keep in mind that under certain circumstances, it is possible for a will to be challenged and for a court to intervene on behalf of another person.

 The most common type of challenge is called a Family Provision Application. Such an application is made to a court by a person who claims a deceased person has failed to make adequate provision for the applicant’s proper maintenance and support.

 Under the Succession Act 1981 (Qld), applications can only be made by a deceased person’s spouse (which includes de facto partners), children (which includes step-children) and dependents. If the applicant’s claim is successful, the court has the power to order that provision be made out of the deceased person’s estate, in the amount that it thinks fit. 

 Factors that a court may take into account when considering a claim include: the size and nature of the deceased estate; the applicant’s financial position; the relationship between the applicant and the deceased; the relationship between the deceased and other persons with potential claims against the estate and the needs and financial positions of other beneficiaries.

 It is important to note that strict time limits are imposed on Family Provision Applications.

 If you are considering making a Family Provision Application, it is advisable that you seek expert advice as soon as possible to ensure that you are able to comply with these strict time limits.