Challenging a Will
When your spouse, parent or step-parent dies and their last Will does not leave their Estate the way which you think is fair, there may be something you can do about it.
There are generally two ways in which you can challenge a Will. The first is you can challenge the Will on the basis that the Deceased person did not know what they were doing when the Will was signed. This is a very complex area of law and we would encourage you to speak with us regarding any questions you may have.
The second way you can challenge a Will, which is far more common than the first, is that although the Deceased knew what he or she was doing when the Will was signed, you are not happy with its contents. We are regularly asked these questions in those circumstances.
Q The Will is just not fair. What can I do?
A
If the Deceased person was your spouse, parent or step-parent you may have a right to bring what is known as a Family Provision Application. This is a Court Application where, regardless of the terms of the Will, you are applying to the Court for an Order to be made for your proper maintenance and support.
Q Will I have to go to Court?
A
Most Estate disputes settle well before they are set down for Trial. In Queensland before any matter is set for Trial all parties to the dispute must attend a Mediation conference to try to resolve the dispute. It is at these Mediation Conferences that the vast majority of claims settle.
Q The Executor won’t give me a copy of the Will. What can I do?
A
If you are named in the Will or a previous Will of the Deceased, or if you are the Deceased's spouse, child or step-child the Executor must provide you with a copy of the Will upon your request. If they don’t they are in breach of the Succession Act.
Q Are there time limits I should worry about?
A
Yes. You must advise the Executor in writing that you want to challenge the Will within six months from the date of the Deceased's death and file Court proceedings within nine months from the date of the Deceased’s death. Estate disputes are not matters where you can delay taking action because if you are out of time, your right to bring the claim may be lost.
Q I can’t afford to pay for a Lawyer. Do you act for clients on a no win, no fee basis?
A
Yes. Generally the less money you have, the stronger your claim in a Family Provision Application is. We understand this and so after reviewing your claim with you, we can agree upon our terms of payment which may include a no win no fee agreement where we only receive payment once you have received your inheritance.
