Wills + Estate Disputes

The latest formal study on the success rates of Australian dispute claims was conducted in 2015 by the University of Queensland, Queensland University of Technology, and Victoria University. It reports that family provision claims have a 74% likelihood of success. This percentage extended to 77% for Queensland-based claimants.

In Queensland, in order to make a Family Provision Application and be successful, you must be an eligible applicant. You will be an “eligible applicant” if you fall within one or more of the following categories:

• the deceased person’s spouse (including de facto and civil partners);
• the deceased person’s child (including adopted child and stepchild); and/or
• the deceased person’s dependant (dependent parents, dependent siblings and grandchildren (if they were financially dependent on the deceased).

Claimants must inform the executor (the person responsible for managing the estate of the deceased person) of their intention to contest the will within six months of the death of the person who made the will (testator). The claim itself must be submitted within nine months after the testator’s death. The claimant has nine (9) months from the date of death of the testator to make a Family Provision Application.

Each Australian jurisdiction has specific grounds for contesting wills. To establish a solid basis for contesting, and in turn be deemed to be an ‘eligible person,’ the claimant generally must demonstrate that the deceased was subjected to undue influence, threats, constraints, or coercion when creating their will.

Reasons for contesting a will include:

• You haven’t been adequately provided for in the Will
• Doubt over the validity of the Will
• The will-maker was unduly influenced when making or updating their Will

In the event of an unsuccessful will contestation, the claimant may be without compensation or additional benefits from the estate of the deceased. Further, if the application never had merit and/or isn’t successful, the claimant may be required to pay their own costs and, in rare cases also the costs of the estate.

The largest category of cases in the sample relates to family provision claims. A testator is entitled to be ‘capricious and improvident’[19] when making a will and one of the traditional foundations of succession law was the primacy of testamentary freedom.[20] However, the unfettered discretion of a testator has been limited by the development of testator’s family maintenance and family provision legislation which acknowledges a moral, as well as a legal, imperative on the testator to provide for certain individuals.

This depends on at what stage a resolution is reached, the state where the claim is filed and the complexity of the case.  The costs generally range from the low thousands, to the hundreds of thousands. Irrespective of the time it takes to agree on a settlement, there are several costs claimants should consider:

• Cost of gathering evidence and reviewing discovery.
• Legal costs for representation.
• Mediation fees.
• Court fees for filing notices and affidavits.

When preparing a will, a person is generally entitled to distribute their assets by way of a will as they please. The courts however have the power to vary gifts in a will, provide benefits for persons omitted from a will or declare an entire will invalid.  The answer to this question depends a lot upon the unique details of each matter.

The Courts in Queensland will typically avoid interfering with the will of a deceased person and have imposed laws and regulations around making a claim. In Queensland, you will file with a Family Provision Application. If you file for inadequate provision, the courts will look at:

• How much you’ve received thus far from the estate.
• Your health and income-earning capacity.
• The size of the estate.
• Contributions you may have made to the estate.
• Your financial situation.
• Your relationship with the deceased.

To dispute the validity of a will, the process is found in both state legislation and common law principles. A will is typically found to be invalid if there was undue influence or fraud in its creation, or the testator lacked the required testamentary capacity to write a will

If you have been left out of a will, you may be confused about your exclusion from the deceased person’s estate. A will maker, also known as a testator, is entitled to be capricious and improvident when making a will and one of the traditional foundations of succession law is the importance of testamentary freedom. However, the unfettered discretion of a testator has been limited by the development of testator’s family maintenance and family provision legislation, which acknowledges a moral, as well as a legal, imperative on the testator to provide for spouses, children or dependants. If you are a spouse, child, or dependent of the deceased, you may have legal grounds to contest the will. In Australia, you may be able to challenge the will under family provision laws, which are designed to ensure that eligible family members receive adequate provision from the estate. To contest a will, you typically need to demonstrate that you have not been adequately provided for in the will and that you have a legitimate claim to a share of the estate. It is essential to seek legal advice promptly to understand your rights and options, as there are specific time limits for challenging a will.

In Queensland, Australia, it is generally possible to leave a child out of your Will, but it is essential to approach this matter with caution and consider potential legal implications. The Succession Act 1981 governs wills in Queensland, and it grants a person the freedom to dispose of their assets as they wish.

However, if a child believes they have been unfairly excluded from their parent’s Will or have not been adequately provided for, they may challenge the Will’s validity or seek a Family Provision Order to claim a share of the deceased’s estate. To minimize the risk of such challenges, it is advisable to seek professional legal advice when drafting a Will.

To ensure your Will reflects your wishes and is less susceptible to disputes, transparency and clarity in your intentions are crucial. Open communication with all potential beneficiaries, including the child you wish to exclude, may help mitigate potential conflicts and reduce the likelihood of legal challenges after your passing.

Yes, your parents have the legal right to cut you out of their Will. In most jurisdictions, including Queensland, individuals have the freedom to distribute their assets as they see fit through their Will or estate plan. This means that parents can decide to exclude their children from inheriting any portion of their estate.

There can be various reasons why parents may choose to disinherit a child, such as strained relationships, past conflicts, or concerns about the child’s financial responsibility. However, disinheriting a child can potentially lead to hurt feelings, family disputes, and legal challenges after the parents’ passing.

To avoid misunderstandings and reduce the chances of legal conflicts, open communication within the family can be crucial. If you believe you have been excluded unfairly, seeking legal advice and understanding your rights and potential remedies can help address any concerns regarding the Will’s validity or your entitlement to a share of the estate.

You can intentionally omit a relative or a friend from your Will and give the reason why you do not wish for them to receive any of your property.

The main objective of a Will is firstly to make sure that everything that you have managed to gather around you during your lifetime (valuable and sentimental), goes where you want it to go; and secondly to ensure that your family are not left with a mess to sort out at a time of grief and heartache as this is also very expensive.

The assets go to the next-of-kin according to schedule set out in the Succession Act 1981. Court must appoint an executor which may be a family member or the Public Trustee.

The Executor is the person who will administer your estate. In simple terms – who will distribute your property in accord accordance with your request?

Your Beneficiaries are those people who will receive the property in your Will. You can make special bequests in your Will such as particular items of jewellery or family heirlooms. You can also leave some or all of your property to charity.

Your current will may be invalid if:

• It is not prepared in accordance with the relevant legislation
• If you marry your will is revoked with certain exception
• If you divorce certain provisions of your Will may be revoked

By ensuring that your Will is valid, current and has been drawn up by a professional, such as Bennett Carroll Solicitors. We will advise you on the most effective means of distributing your assets and ways in which assets can be protected.