Contesting a Will in Queensland
Our Attorneys Assist with Will Disputes in Queensland.
Family provision law in Queensland is governed by the Queensland Succession Act 1981 (amended many times since that date). The main difference in Queensland are the rules relating to who is permitted to contest a will and make a claim for provision out of the estate of a deceased person.
Most of the categories of eligible people are the same or similar to other States such as spouses, de facto spouses, children and certain dependents but also specifically include parents and stepchildren.
The forms and processes for family provision claims are also different and two courts are used frequently namely the Supreme Court for large estates and the District Court for smaller estates.
Family Provision Claims in Queensland can be made only of there is real estate property owned by the deceased situated in Queensland; and/or the deceased was domiciled (living permanently) in Queensland at the date of his or her death and owned personal property anywhere.
One of the first things a claimant needs to do is get a copy of the last will. The law in Queensland in Queens Section 33Z(4) of the Succession Act 1981 (QLD) the following persons are entitled to inspect a Will of the deceased:
In Queensland the eligible applicants to contest a will and commence family provision proceedings are:
a) the wife or husband of the deceased at the time of death;
b) de-facto partner of the deceased at time of death (requires relationship of at least 2 years)
c) former legal spouse (must not be remarried and be receiving or entitled to maintenance OR be a parent of minor child of deceased and dependent at date of death);
d) child of the deceased;
e) step-child of the deceased (includes de-facto step-children);
f) parent (if dependent at date of will makers death);
g) dependent of the deceased at the time of death.
Other Relevant Factors in Queensland:
Another slight difference in Queensland is the facts the court takes into consideration in determining a case. They are;
a) any family or other relationship between the applicant and the deceased;
b) the nature and extent of any obligation or responsibilities the deceased had to the applicant or beneficiary;
c) the financial resources and financial needs of the applicant (both present and future), any other applicant or beneficiary;
d) the nature and extent of the will makers estate and liabilities;
d) the financial resources and financial needs of the applicant (both present and future), any other applicant or beneficiary; if the claimant is cohabiting with another person-the financial circumstances of the other person,
e) the financial circumstances of another person the applicant is cohabiting with;
f) any physical, intellectual or mental disability of the applicant or any other applicant or beneficiary in existence at the time of the hearing;
g) the applicant’s age at the time of the hearing;
h) any contribution (financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate or the welfare of the deceased or family of the deceased for which adequate consideration was not received by the applicant;
i) any provision made for the applicant by the deceased during the will makers lifetime or made from the estate;
j) any evidence of testamentary intentions of the deceased, including evidence of statements made by the deceased;
k) whether the applicant was being maintained wholly or partly by the deceased before the will makers death and (if the court considers it relevant) the extent to which and basis on which the deceased did so;
l) whether any other person is liable to support the applicant;m) the character and conduct of the applicant before and after the will makers date of death;
m) the character and conduct of the applicant before and after the will makers date of death;
n) the conduct of any other person before and after the will makers date of death;
o) any relevant Aboriginal or Torres Strait Islander Customary Law;
p) any other matter the Court considers relevant, including matters in existence at the time the application is being considered.
The prime consideration for making a claim in Queensland is whether the deceased lived in Queensland and the deceased owned assets in Queensland.
Important Will Contest Rules 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.
Fees for Contesting a Will
In Family Provision cases the defendants' costs (win or lose) are almost always paid out of the estate.
In Family Provision cases The claimants' costs are always paid out of the estate if you "win". However if you lose you will have to pay your own costs (unless you have a 'No Win No Fees' solicitor agreement). If you lose in most cases you will have to pay the defendants' costs. The decision as to whether you pay the defendants' costs is at the discretion of the judge and will vary from case to case.