Estate Litigation

If you have been left out of a Will or received an unfair share of the Estate in the Will you may contest, challenge or dispute the Will.

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

Challenging a Will

A Will can be challenged for a variety of reasons.

• You might doubt the validity of the Will,
• The testator (the person who made the Will) was unduly influenced to make or updating the 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 we can help you investigate the possibility of contesting the Will.

How can we help you?

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

Get in touch with us online today via our online forms and our dedicated Wills & Estates lawyers will get back to you promptly.

Make an enquiry

What is Estate Litigation?

When a family member passes away they may leave behind property/assets and/or debts. The total of all the property the person who passed away owned at the time of their death is known as the Estate. If a beneficiary of the Estate does not believe that the Will is valid, or that they have been unfairly provided for in the Will, a claim is filed. This claim is considered Estate Litigation.

A large area of Estate Litigation is in the area of contesting, challenging or disputing a Will. When a person dies a potential beneficiary may decide to challenge the Will if they have been left an unjust or unfair share of the Estate, or have been completely left out of the Will. The laws regarding the right to contest a Will and the reasons for challenging a Will vary state by state.

Can I contest or challenge a Will?

If you are a:

• spouse, (including de facto partners),
• child (including step and adopted children),
• some financial dependants (parents of the deceased person, the other parent of a child under 18 who is the child of the deceased person, or anyone under 18 who was dependant on the deceased person),

then you can make a claim if you can show that you were not adequately provided for in the Will.

If you have been left out of a Will or feel you have been left without adequate provision, an application can be made to the District or Supreme Court for further provision from the Estate.

The court will take into account all the circumstances of your life, including financial need, your qualifications, earning capacity, health, the size of the estate and the relationship between you and the deceased.

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 Will was made, consider that the deceased was unduly influenced to leave a gift to a particularly beneficiary, doubt that the deceased understood the effect of the Will, or 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 solicitor’s notes surrounding the signing of the Will are required. The Court will then consider if the Will is the true, last valid Will and testament of the deceased, made freely and without influence.

Family Provision Application in Queensland

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’s estate for either a share, or a larger share of the estate.

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

• A spouse of the deceased (including de facto)
• A child/children of the deceased (including stepchildren & adopted children); and
• Financial 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 are the widow of the deceased, and the deceased left the entire estate to charity;
• 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.

Yes you can.

If a person dies without a Will, they are deemed to have died intestate (meaning without a Will).

The estate is then administered/distributed in accordance with the strict intestacy rules in Queensland.

What most people fail to realise is that if a person passes away without a valid Will, their entire estate does not automatically pass onto their spouse. Instead, the Spouse will receive the first $150,000, household chattels and a share in the residual estate depending on the number of children of the deceased.

What are Family Provision Applications?

Even though the law recognises a person’s right to choose who will inherit their estate, there are often reasonable circumstances why a person should contest a Will.

If you have been left out of a Will, or have not been properly provided for in the Will and you think that you should have been provided for, you may be able to claim a share of the estate. Similarly if someone is trying to make a claim on an estate that has been left to you, Turner Freeman Lawyers can advise and represent you in defending the estate by upholding the Will of the deceased.

Those people who are defined as eligible persons under Section 41 of the Succession Act 1981 (QLD) may make an application to the court for a family provision order to adjust the interests that are created by a Will. These include:

• The deceased person’s spouse, including wife/husband/de facto partner;
• A child, including any stepchild or adopted child of the deceased;
• Dependents who were wholly or substantially maintained or supported by the deceased;
• A person who was at the time partly or wholly dependent on the deceased.

You will need a specialist Will Dispute lawyer if:

• If you are concerned that you have unfairly been left out of a Will or have not received your fair share from a Will,
• want to find out where you stand and if your claim is worthwhile to pursue,

From our experience seeing firsthand the bad outcomes that people achieve without lawyers, the answer is absolutely yes.

How can a will dispute lawyer help me with contesting, challenging or defending the Will?

A specialist will dispute lawyer can advise you the most effective way to contest, challenge or defend a Will. Our specialist lawyers will be able to advise you whether you can make a claim on the estate, how long this process might take and potentially how much you might be able to receive.

Why choose us?

• We provide 'No Win No Fee' for will dispute claims
• We can come to you if you are too ill to visit us
• Your first meeting with us is obligation free - you do not have to retain us

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 you seek prompt appropriate legal advice if you want to contest or challenge a Will.

Time limits for contesting a Will

Strict time limits apply to these types of claims. A Family Provision Application notice of your intention to apply for further provision from the estate must be given to the Executor of the Estate within six (6) months from the deceased’s date of death.

Therefore, 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.

It’s important to distinguish between an Executor and someone who holds Power of Attorney. The Executor has the power to administer an estate of someone who has died, while Power of Attorney empowers someone to make decisions of their behalf while they are alive.

To contest the validity of a Will an application should be made before a Grant of Probate has been 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. If you are out of time, you would need to obtain leave of the court to allow you to bring your application. You must have very good reasons to explain your delay.

Be sure to get legal advice as soon as possible.

Time limits in Queensland

• QLD

• Notice should be given within 6 months of date of death to the Executor/s
• 9 months from date of death to file the application

For more information about Family Provision Applications or defending the Estate against such a claim, get in touch with us on 13 43 63 or via our online enquiry form.

How much will I get if I contest the Will?

As every claim is different, it is difficult to estimate how much you will receive from the estate until we have your full instructions.

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 realistic range of 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.

It is often possible to settle a matter without the need to go to Court via 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. Only 1% to 2% of our cases proceed to trial or end up in a court room. This is a very small number which is good for everyone, especially our clients.

Very few Estate Litigation cases go to trial and the vast majority of these matters 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. 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.

If we act for you on a No Win – No Fee basis, we will pay for all of the disbursements or expenses out of our own funds such as expert fees, reports, court filing fees and so on.

In the highly unlikely event that 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, unless you have brought a claim without merit.

We have developed the information booklet below that summarises our Estate Litigation services and process.

To view and print this PDF file, you will need to have the Adobe Acrobat Reader software installed, which is available for free-of-charge from the Adobe website.

If you would like to request a copy of any of our printed materials, please complete the Contact Us form and we will gladly post them out to you.