Contesting a Will in Queensland
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What’s different 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:
Getting a copy of the Will:
a) any person mentioned in the will;
b) any person mentioned in an earlier will as a beneficiary;
c) spouse, parent or issue of the deceased;
d) any person who would have been entitled to a share in the estate if the deceased died intestate;
e) parent/guardian of a minor mentioned in the will or who would have been entitled to a share if the deceased died intestate;
f) creditor or person with a claim against the estate;
g) a person who may be eligible to contest the Will (bring a family provision application)"
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.
Another slight difference in Queensland is the facts the court takes into consideration in determining a case. They are;
Relevant Factors in Queensland:
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.
Other Differences in Queensland Law
Hereunder I will summarise various facets of Queensland Will Contest 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 contest lawyers and their clients. Judges in court proceedings are very often limited in their determination of a case by the precise wording of the legislation of a particular state.
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