Contesting a Will

Contesting a Will

If you have been unfairly left out of a Will, you can contest, dispute or challenge that Will. In Queensland there are laws to protect those who have unfairly or unjustly been left out of a Will, or received an unfair share of the Estate.

Turner Freeman Lawyers Wills & Estates department have dedicated, experienced lawyers who exclusively deal with Estate Litigation. We can work with you to ensure you receive your rightful share of the Estate.

Your initial consultation with us is free and obligation free so if you believe you have been left out of a Will unfairly call us on 1800 683 928 or via our online enquiry form.

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Frequently Asked Questions

  • Whilst the law recognises a person’s right to leave their estate to who they wish, there are circumstances in which a person should contest a Will.

    A Will can be challenged for a variety of reasons. You might doubt the validity of the Will, you might think that the testator (person who made the Will) was undue influenced to make a Will a certain way or you might feel as though you have not been adequately provided for in the Will. If you have any of these concerns you should investigate the possibility of contesting the Will.

    Contesting a Will is not always straight forward. No matter your concern, at Turner Freeman Lawyers we have dedicated lawyers who work purely in Wills and Estates Law to help you through the process.

    Our dedicated lawyers will take the worry out of making or defending a claim and will ensure you get what you are entitled to from a deceased Estate.

  • You can contest a Will by either challenging the Validity of a Will or contesting the amount of money you have been left under a Will.

    Contest the Validity of a Will

    If you doubt the deceased’s mental capacity at the time the made his Will, if you consider that the deceased was unduly influenced to leave a gift to a particularly beneficiary, if you doubt that the deceased understood the effect of the Will or you consider the Will is a forgery or was not witnessed properly, you can challenge the validity of a Will.

    To determine the validity of a Will you can make an application to the Supreme Court of Queensland. In these sorts of claims, often medical evidence and the solicitors notes surrounding the signing of the Will are requires. The Court will then consider if the will is the true will of the deceased, made freely and without influence.

    Family Provision Application

    If you feel as though you have been unfairly left out of a Will or have been left without adequate provision you can make a Family Provision Claim to the Court. The claim is made against the deceased estate for a larger share of the deceased' estate.

    Not everyone can make a family provision application. The following classes can make an Application to the Court for further provision:

    • A spouse of the deceased (including de facto)
    • A children of the deceased (including stepchildren & adopted children); and
    • dependents who were wholly or substantially maintained or supported by the deceased (including grandchildren, parents of the deceased, members of the deceased’s household and the parent of the deceased’s surviving children who are under the age of 18).
    • Examples of situations which would warrant a Family Provision Application are as followings:

      • If you are a child of the deceased and the deceased has left all of his/her estate to your siblings and has left you out of their Will completely or has left you less money than your siblings;
      • If you were a de facto partner of the deceased and you were not included in the Will or were not left adequate provision in the Will;

      • If you were a step-child of the deceased and you were no included in the Will or were left less provision than your siblings

  • If you are concerned that you have unfairly been left out of a Will or have not received your fair share from a Will and want to find out where you stand and if your claim is worthwhile to pursue, the short answer is yes. In reality and from our experience from seeing first hand the bad outcomes that people achieve without lawyers, the answer is absolutely yes.

    How can a lawyer help me with my claim?

    A good lawyer will focus on whether he or she can justify their involvement in the case so that you can be confident that the benefits of using a lawyer will outweigh or far outweigh the legal costs.

    Your first consultation with us is free so we advise all our clients and potential clients to seek advice and at the earliest possible time to remove any doubt or worry about your rights or where you stand.

  • Yes.

    If you delay obtaining legal advice you run the risk that estate assets have been sold, transferred or spent and as a result there could be nothing left in the estate for you to claim against. Therefore to protect your entitlements, we recommend that you seek prompt legal advice if you want to contest a Will.

    Time limits for contesting a Will

    Strict time limits apply to these types of claims. For a Family Provision Application notice of your intention to apply for further provision from the estate must be served on the Executor of the Estate within six (6) months from the deceased’s date of death. Although this notice is not fatal to a claim, you run the risk that there are no assets left in the estate to claim against. Within nine (9) months of the deceased’s date of death you must then file your Application and Supporting Affidavit setting out your claim in the Court and serve it on the Executor/s.

    To contest the validity of a Will an application should be made before a Grant of Probate has issued from the Supreme Court or if no Grant of Probate has been applied for within six (6) months of the deceased’s date of death.

    It can be extremely difficult to progress your claim if a time limit has expired. It would be necessary for you to obtain leave of the court to allow you to bring your application out of time. You must have very good reasons to explain your delay.

  • How much will I get if I contest the Will?

    It is difficult to estimate how much you will get from the estate until we have your full instructions as every claim is different.

    After you have provided our Wills and Estates Department with your full instructions, Turner Freeman Lawyers have the expertise from their experience in estate litigation to provide you with a range of realistically what we think your claim is worth.

    In making our assessment, Turner Freeman Lawyers will consider the following factors:

    • The size of the deceased estate;
    • The nature of your relationship with the deceased compared with the nature of the other beneficiaries relationship with the deceased;
    • Your financial needs compared with the financial needs of the other beneficiaries of the estate;
    • Your state of health compared with the State of health of the other beneficiaries of the estate; and
    • Any contributions you made to the deceased estate or the deceased made for you during their lifetime.
  • How long will my claim take and how much will it cost?

    If we advise you that you have reasonable prospects of success and that the claim is economically worthwhile to purse, we will send you a proper written advice and a proposal. Our proposal will set out, in plain English, a realistic estimate of how long we believe your case will take to resolve and the likely cost.

    Generally speaking, most claims are able to be resolved within 6 to 18 months from when the claim starts. If the case goes to trial (which is highly unlikely) this can add a further 6 to 12 months to the time estimate.

    If your case has to go to court, it will cost more than if it settles at an early stage. The more work which is done results in higher fees; however, we are always doing whatever we can to keep costs as low as possible. All of this is explained in our written advice along with realistic and reliable fee estimates.

    Our fees

    Our fee estimates are usually at least 20% lower than our competitors from our past experience.

    In our experience 98% to 99% of cases we run are capable of resolution or settle prior to trial.

  • Will my claim settle or will it go to court?

    It is often possible to settle a matter without the need to go to Court via pre-issue negotiations. However, if a resolution cannot be achieved, it may be necessary to proceed to Court in order to ensure that you receive a fair distribution from the estate.

    As part of the Court process, mediation is usually ordered. The mediation is an opportunity for both sides to present the strengths of their relative cases, and hopefully, reach a settlement. The vast majority of matters settle at mediation. If a resolution cannot be achieved at mediation, the matter will then be listed for trial.

    However, it is rare for a matter to proceed all the way to trial as there are further opportunities to resolve the matter along the way via negotiation.

    It is our aim to conclude a claim by settlement wherever possible.

    However if it is in your best interests to take your matter to trial, Turner Freeman Lawyers have the necessary expertise.

    In our experience over the past 60 years, very few cases end up in court. It is only something like 1% to 2% of all of our cases proceed to trial or end up in a court room. This is very small number which is good for everyone, especially our clients.

    Very few motor vehicle accident cases require court supervision and the vast majority of these claims are capable of early resolution. This is what we aim to achieve as it keeps the legal costs down and maximises your 'in hand' outcome.

    Regrettably, not all cases settle and we have a significant amount of court room and trial experience so in the highly unlikely event that your case does go to court, we have the skill, experience and expertise to take the matter all the way if necessary.

  • No Win No Fee policy at Turner Freeman Lawyers

    After we have investigated your claim at no obligation to you, we will then make a decision about whether we would be prepared to act for you on a No Win – No Fee basis. At that time, we will provide you with a proper written advice regarding your prospects of success and whether we are prepared to act for you on a No Win – No Fee basis.

    Under our usual terms and conditions, No Win – No Fee simply means that we if take your case on, we will only be paid a reasonable fee for the legal work we have done for you at the end of the claim and only if you win.

    In the highly unlikely event that your claim goes to trial and in the even more unlikely event that your case goes all the way to trial and you lose, we will not seek to charge you anything for all of the work we have done for you.

    However, if your case goes to court and you lose, while you would not have to pay us anything, it is likely that the court would order to pay the other side's legal costs which could be a substantial sum. However the usual occurrence is for your legal fees to be paid out of the deceased estate.