If there is someone in your life with whom you have a close relationship, when they pass away, there may be circumstances where you may be able to challenge their Will in Queensland if you were not adequately provided for as a beneficiary. Even if they didn’t have a Will, you may also be able to make a claim.
These are the questions that need to be answered if you think you might be in this situation :
- Are you eligible to make a claim?
- Did the deceased make a Will?
- Do you have a copy of the Will?
- Were you adequately provided for in the Will?
- Did the deceased have a Queensland connection?
- When did the deceased pass away?
1. Are you eligible to make a claim?
You need to fall within one of the following 3 categories:
1. The deceased’s spouse; which includes the following:
(a) the deceased’s husband or wife;
(b) the deceased’s de facto partner;
(c) you lived with the deceased as a couple continuously for at least 2 years up to the deceased’s death;
(d) the deceased’s civil partner;
(e) the deceased’s dependant former husband or wife or civil partner.
2. The deceased’s child, which includes any child who may be born after the death of the deceased, any stepchild or any adopted child of the deceased.
3. The deceased’s dependant – a person who was wholly or substantially maintained or supported by the deceased when he or she died, and who was either:
(a) a parent of the deceased;
(b) the parent of a surviving child (under 18 years) of the deceased;
(c) a person under 18 years.
2. Did the deceased make a Will?
Many people do not have a Will. Some people make a Will, but their family and Executor aren’t aware that it exists!
> If there is a Will, you need to obtain a copy to determine whether any provision has been made for you.
> If there is no Will, you need to determine whether you would be entitled to receive a share of the estate (and how much) under the rules on intestacy.
3. Do you have a copy of the Will?
You are entitled to obtain a copy of a deceased’s Will if you are:
(a) mentioned in the Will, whether as beneficiary or not, and whether named or not; or
(b) mentioned in any earlier Will of the deceased as a beneficiary, and whether named or not; or
(c) a spouse, parent or issue of the deceased; or
(d) a person who would be entitled to a share of the estate of the deceased if he or she had died intestate; or
(e) a parent or guardian of a minor mentioned in the Will, or who would be entitled to a share of the estate if the deceased had died intestate; or
(f) a creditor or other person who has a claim at law or in equity against the estate; or
(g) the deceased’s spouse, child or dependent as outlined in Section 1 above (i.e. eligible to make a family provision claim).
4. Were you adequately provided for in the Will?
Once the court has determined that you are eligible, the court has a discretion as to whether it will make an order in your favour.
There is no definition of “adequate provision” that can give you any certainty as to whether you would succeed. No two fact situations are identical.
The court will only make an order if it is satisfied that it is proper that some provision should be made for you, having regard to:
- the extent to which you were being maintained or supported by the deceased, and
- your need for the that maintenance or support to continue, and
- the circumstances of the case.
What factors will the court consider?
The legislation does not state the factors to be considered, however the courts have referred to the following factors as being relevant:
- The size and content of the deceased’s estate;
- Your financial position, as well as the beneficiaries and any other claimants;
- The nature and extent of your relationship with, and the amount of support provided by, the deceased;
- Any statements or promises made by the deceased about how they would divide their estate;
- Your standard of living;
- Any contributions made by you, or any beneficiaries, to the size of the deceased’s estate;
- Whether you are required to support other people, and whether other people are required to support you;
- Your age and health;
- The merits of any competing claims to the deceased’s estate;
- Your conduct which could disentitle you to an order for provision
Where the deceased did not have a Will, the Court may consider your entitlement under the intestacy rules (if any) compared with the above factors.
5. Did the deceased live in Queensland, or own real estate in Queensland?
The Supreme Court of Queensland can only make an order where the deceased had a connection with Queensland as at the date of death:
- If the deceased lived outside Queensland, did he or she own real estate in Queensland?;
- If the deceased lived in Queensland, did he or she:
- own real estate in Queensland, or
- own personal property situated in or outside Queensland?
6. When did the deceased pass away?
The Death Certificate provides conclusive evidence as to the date of death.
There are 2 time limits to be aware of if you want to contest a Will:
1. you must give written notice to the Executor within six months of the date of death.
- If the executor hasn’t received notice of a claim within six months, the estate can be distributed.
2. you must file your application in the Supreme Court within nine months of the date of death
“Out of Time” Application
If these time limits have passed without you taking action, the Supreme Court has a discretion to allow an “out of time” application, depending upon:
- How much time has elapsed;
- The reason for your delay;
- Whether the Executor / Administrator has distributed the estate; &
- Whether you have engaged in any unconscionable conduct.