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Will Dispute Lawyers Brisbane

Who can contest a Will?

When a loved one passes away, it is a deeply emotional time. If you have been excluded from a Will that you believe you rightfully have a claim on, or you believe a Will has been made under coercion from another party, it can become even more stressful.

When a person prepares a Will, it’s their right to decide who inherits their estate assets after they die. But Australia also has laws to protect eligible people who have been unfairly left behind with little or nothing in a Will.

You’re generally an eligible person to contest a Will if you fall into any of these four groups:

  1. spouses (current and previous)
  2. de facto partners (current)
  3. children (including some stepchildren)
  4. anyone who is dependent on the deceased (this differs state to state).

How to contest a Will?

Contesting wills can be done on the basis of two options:

  • challenge the validity of the Will or;
  • contesting the amount of money you have been left in a Will

Reasons for contesting a Will:

  • Doubt over the validity of the Will:

    If you were a beneficiary in a previous Will, but are not present in the latest version of the Will when the Will maker lacked testamentary capacity, you might be able to the challenge the validity of the last Will.

  • The Will maker was unduly influenced when making or updating a Will, or if the will maker lacked capacity:

    This normally occurs when it is believed the Will maker was pressured into making a Will. This involves proving that the deceased person’s will was created with undue influence from another person/s.

  • You haven’t been adequately provided for in the Will:

    This occurs when someone close to the deceased person such as family members, believe they weren’t left enough money, assets, or adequate provision in the Will.

  • Breach of trust

    This occurs when beneficiaries of the deceased estate believe the executor of the estate has not performed their role adequately.

What if there is no Will? Can I still contest?

If a person dies without a Will, they are deemed to have died intestate (meaning without a Will). When this occurs, the deceased’s estate and assets are distributed in accordance with the intestacy laws in Queensland. In these cases you are still able to proceed with contesting an estate.

This can be quite a complex area of the law to navigate so it’s in your best interests to work with an experienced Brisbane Wills and estates lawyer to ensure you receive the best possible outcomes.

 

Family Provision claims

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 take legal action 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, our Brisbane Will dispute lawyers can advise and represent you in defending the estate by upholding the Will of the deceased person.

Those people who are defined as eligible persons under Section 41 of the Succession Act 1981 (Queensland) 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;
  • Dependants 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.

What are the time limits for contesting a Will?

In Queensland you should give notice to the executor of the deceased estate within six months of the deceased person’s death.

If you wish to challenge the Will, a family provision application notice to apply for further provision must be given to the executor within six months of the deceased person’s death.

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 6 months of the deceased’s date of death.

As these strict time limits exist, it’s best to seek early legal advice from a Will dispute lawyer as soon as you can, to begin the claim process.

How long will the process take?

As a general rule, the majority of claims are able to be resolved within six to eighteen months of the claim starting. If the case proceeds to trial, this can add an additional six to twelve months to this time frame.

98% of the Will disputes that Turner Freeman manages are settled out of court, so it is unlikely your case will proceed to court.

Why choose Turner Freeman Lawyers

Our estate lawyers work with you to arrange proper and adequate provision from the deceased estate. We will do everything we can to thoroughly prepare your case and negotiate an outcome that recognises your relationship with the deceased, and your financial needs. Turner Freeman’s legal team are committed to providing professional and practical advice, so you know what to expect through each step of the process and all the possible outcomes.

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