Disputing a Will in Queensland
Who pays the Legal Costs? As your case gets close to finalisation this will become a very important issue. A substantial amount of your final settlement will be paid in legal costs. You may have heard that your legal costs will be paid out of the estate. Well, don't be fooled; at the end of the day your costs will come out of the estate alright... your share of the estate. Your share could be reduced by as much as half. For more information on this subject give me a call.
Eric Butler 1800 960 156
Please Note: This page is about disputing a will on the grounds of poor administration of the estate or executor negligence. If you've been left out of a will or not received your fair share please proceed to our "Contesting a Will" pages.
A will dispute is not the same as challenging or contesting a Will. A dispute over a Will can arise for many reasons not related to a ‘challenge’ or a ‘contest’ such as an argument as to what the will meant; how the will is being administered or distributed; whether there are errors in the Will; whether a beneficiary named in the Will is not entitled because of a crime committed; removal of an executor or administrator or other disputes about the use of a ‘power of attorney’ during the deceased lifetime.
What’s different in Queensland?
The law relating to disputing a will in Queensland is basically the same as for all other Australian States however there are some important differences in some of the types of will disputes as follows:
- The ‘ademption’ rule
In Queensland the law does not provided for a specific exception to the ‘ademption’ rule as in NSW. The legal term ‘ademption’ occurs when a gifted item is no longer available to a beneficiary named in the will because the deceased no longer owned the item at the time of his/her death.
However in Queensland the courts will consider an exception to the ‘ademption’ rule in circumstances where a beneficiary suffers an unjust disadvantage not contemplated in the will. For example if there was a fraud against the will maker and intended beneficiary the court may intervene.
There has also been considerable argument in court as to the will makers knowledge and intention about the disposal of an item or property. The better view seems to be that if the will maker did not intend the item or property to be disposed of before his/her death the ‘ademption’ rule would not apply. Nothing is just black or white in in wills and estates law and this particular area of the law will be different in every case.
- Notional estate
There is no ‘notional estate’ law in Queensland
- Probate and transfer of property.
In Queensland a certificate of the grant of probate is not required to transfer real estate property. An application is made to the land titles office supported by documentary evidence on oath stating facts about entitlement to have the property registered in your name. Following registration the property may be sold or otherwise dealt with.
This procedure leaves the door open for an unscrupulous person to fraudulently transfer property. Whilst the fraud would eventually be detected the property may have been resold and the proceeds long gone making it difficult to retrieve the value of the asset.
- The forfeiture rule.
The basic principle/rule is that a person should not benefit from another’s will if that person caused the death of the will maker. In Queensland except in special circumstances, this rule is rigidly adhered to. If, for example, the killer to applied for probate of the will of the deceased or expected to receive a gift from the will of deceased the court would not grant probate or allow the gift to him/her.
There is not specific legislation in Queensland dealing with ‘forfeiture’ like for example in NSW and Victoria. However in 2014 the Queensland Supreme Court made the law clear when it ordered the forfeiture rule to stand in a case of assisted suicide. The named executor and beneficiary who assisted with the suicide forfeited his rights under the will.
In the 2014 case the Chief Justice held that the court did not have the discretion to modify the rule.
There are many other types of will disputes in Queensland including disputes over the distribution of the estate. This is often also when there is no will. In those cases the law of intestacy (no will) applies and in Queensland pursuant to the Succession Act 1981 (Qld). A typical dispute could arise between the entitlement of competing spouses on the death of (often a male deceased).
Generally, however the following are the rules in Queensland;
If there is no spouse or issue, then provision is made for your parents, brothers and sisters, nephews and nieces, then grandparents, then uncles, aunts and cousins. There is no provision for distribution of your Estate to relatives more remote than your first cousins.
Your in-laws are not classified as next of kin and are not included in the rules for the distribution of your Estate. A step-parent is not next of kin and neither is a mother-in-law or a father-in-law.
The best way to ensure your estate is distributed to who you would like to benefit, is to make a valid Will and keep it up to date.
There is also sometimes a dispute about who is entitled to see the will or have a copy of the will after the death of the will maker. Before the death of a will maker no one except the will maker is entitled to see the will although it is generally recommended that the executor named in the will should at know he or she is named as executor and possible even let him or her hold a copy of the will with directions as to who holds the original will.
If there is an argument over whether someone is or is not entitled to a copy of the will after death the answer is in the Succession Act 1981;
Will Disputes in Queensland often involve arguments over who is entitled to a copy of the deceased will.
Section 33Z of the Succession Act 1981 (QLD):
(1) A person who has possession or control of a will of a deceased testator must, if asked;
(a) allow an entitled person to inspect the will;
(b) give an entitled person a certified copy of the will on payment of the person’s reasonable expenses of giving the certified copy.
(2) If a will of a deceased testator has been lost, stolen or destroyed, a person who has possession or control of a copy of the will must, if asked;
(a) allow an entitled person to inspect the copy;
(b) give an entitled person a certified copy of the copy on payment of the person’s reasonable expenses of giving the certified copy.
(3) A person who has possession or control of a will, or a copy of a will, of a deceased person must produce it in court if the court requires it.
Who is an entitled person;
(a) a person mentioned in the will, whether as beneficiary or not and whether named or not; or
(b) a person mentioned in any earlier will of the testator as a beneficiary and whether named or not; or
(c) a spouse, parent or issue of the testator; or
(d) a person who would be entitled to a share of the estate of the testator if the testator had died intestate; or
(e) a parent or guardian of a minor mentioned in the will or who would be entitled to a share of the estate if the testator had died intestate; or
(f) a creditor or other person who has a claim at law or in equity against the estate; or
(g) a person who may apply for an order for maintenance from the estate.
Other Differences in Queensland
Hereunder I will summarise various facets of Queensland Will Dispute Law which differs slightly from other Australian States. As I have mentioned in other pages on this site the law is much the same in all Australian States however the specific wording in the legislation of each State can be a trap for Queensland will dispute lawyers and their clients. Judges in court proceedings are very often limited in their determination of a case by the precise wording of legislation or practice notes and procedures of a particular State.
Give me a call anytime. I will personally answer the phone. I'm happy to discuss with you the three (3) most common mistakes made by will dispute contestants that can lead to long delays, huge legal cost and an unhappy end. No cost, no obligation. Choose me to represent you or not, at least you will have the knowledge to start on the right track.
Eric Butler: 1800 960 156