How to contest a Will?
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.
Challenging 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.
Contesting the amount of money you have been left under a Will
If 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.
Family Provision Claim
You can make an application to the Court for further provision if you are:
- 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 where you can apply for a Family Provision Claim:
- 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.
Turn to Turner Freeman
If you have been left out of a will or inadequately provided for we can help. Call us on 13 43 63 or contact us via our online enquiry form.
Alternatively, visit us at any of our offices Australia wide in:
New South Wales
Our WA office is in Perth.
No Win, No Fee
You will never be out of pocket. You do not have to pay unless we win your case. If we don’t win, you don’t have to pay us a cent.
I very much appreciate your time, effort and valuable guidance over the past four years. You have made this matter understandable and supportable and I am eternally grateful.
D M, St Andrews (NSW)
When I first began looking for a Solicitor to handle this case for me I went to your office in Ipswich and found the lady at the front desk very caring and understanding when I told her my situation and she told me that they would be able to help me. From my first call to Natalie she made me feel confident of a good outcome for me. Over the next 15 months I got to speak to Stephanie and Jenna. It was a very stressful time for me and my family. Although it got very personal I was able to perceive until settlement. The work of these 3 ladies is commendable. I would recommend your company to anyone who needs a Solicitor.
F K, Ipswich
At a difficult time in my life, I received professional, empathetic services, and through their diligent representation and negotiation they achieved for me a satisfactory outcome. They almost made me feel like a friend. I have no hesitation in recommending them.
G Mc, Ipswich
Jenna, I would just personally like to thank you for everything you have done for Lisa throughout this entire ordeal. You have been a pleasure to deal with, patient, understanding and always so very professional. You are a credit to your company. My appreciation is understated thank you again for looking after my girl.
J T, Logan
I cannot thank you enough Jenna for all the hard work you and your team have done on my behalf. You grasped everything so quickly and your efforts are greatly appreciated. I knew it was going to be difficult and it proved to be so, however I was lucky enough to have your sage advice each step of the way.
K C, Roseville (NSW)
It has been a very difficult time for me, but your attention to detail, your prompt responses and returning of calls have made a real difference.
We love that you are professional yet personable and that you’ve been reliable and informative every step of the way.
I think this case turned out a lot more involved than any of us thought it would. I’m so glad we had you & Jeff in our corner. Jeff Otto was a perfect choice. Please extend our sincere thanks to Jeff for all his help. Thanks again for being so fantastic.
T H, Ipswich
The whole process with you was perfect, you understood my concerns and took the time to really look into her case before I even mentioned it to Vic, you understood what the consequences where if we failed and you treated Vic with real compassion and understanding. After walking out after our first meeting we both felt that we could trust you and that you were smart and on the ball, we have never felt like that with any solicitors that we have dealt with.
M S, Brisbane
Thank you Jenna for everything you have done for me in a relatively short period and for the spectacular result you achieved for me. I am happy that I found you after being sucked in with another firm on a no win, no fee and getting nowhere with my previous solicitor who would not even return my calls. I am so glad that I found you 6 days from my deadline of putting my family provision application into the courts.
What you achieved without mediation and without court action is amazing. From receiving nothing to half of my father’s estate will simply change my life and my family’s forever. I thank you for accepting such a hard and complex case and appreciate it more than you ever know that you fought hard at exposing things as they were. I will remember what you did for me forever with the greatest of gratitude and thank you for also listening to my rants and being my advisor, friend and getting the job done quickly. You are a remarkable lady, a great solicitor with so much knowledge and the most important true to your word and trustworthy. I also want to say a big thank you to Bec for all her help.
R B, Brisbane
Frequently asked questions
What if there is no Will? Can I still contest?
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?
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;
- 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.
Do I need a specialist Wills & Estates lawyer?
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
What are the time limits for contesting a Will?
Time limits in Queensland
- 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
If you intend to challenge the Will, a Family Provision Application notice to apply for further provision from the estate must be given to the Executor of the Estate within 6 months from the deceased’s date of death.
After 6 months of the deceased’s death, if the Executor has no notice of a claim, he/she can distribute the estate.
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 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 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.
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.
How much will I get if I contest the Will?
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 the process take?
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.
What will it cost?
No Win, No Fee policy
For Will disputes, estate litigation and if you are challenging or contesting a Will, we offer No Win No Fee.
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.