Grounds & Time Limits for Contesting a Will

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The Grounds for Contesting a Will... 

1. You must be an 'eligible person' to make a claim;

2. You need to demonstrate to the court that you have a financial need for provision and that the deceased had a moral obligation to you yet failed to make adequate provision for your proper maintenance and support; 

3. To be successful you must demonstrate that you have a financial need greater than that of your competitors (other family members) or that the estate is large enough to provide extra funds to you without greatly affecting the share of the other competitors and the beneficiaries named in the will. 

What is a family provision claim?

The same as contesting a will. It is a claim for financial provision out of the estate (if left out) or a claim for further financial provision (if left inadequate financial provision).


Queensland Time Limits for a Will Contest 

You have 9 months after death of the deceased to file your claim however you must give notice to the executor that you intend to make a claim against the will of the deceased. Your notice must be in writing and must be given within 6 months of the date of death. If the executor does not receive notice of your intended claim, and 6 months has passed he or she can distribute the estate. Then you would have to chase the funds. 

You can make an application to the court seeking an extension of the 9 month time limit and if the estate has not been distributed at the date when the notice is received, the executor should not distribute the estate until after the courts determination. The court will consider a number of things when determining your out of time application including, the length of the delay; the reason for your  delay; whether the estate has been distributed; and whether you have engaged in any unconscionable conduct.

Time Limits for Probate. 

Probate means 'proof of the will'. When an application is made for probate the court Registrar looks at the will and makes a determination as to whether or not it is valid. That is, he or she looks at the will and the executors application for probate to see that no one has objected to the process and that everything about the will appears to be normal and that there appears to be no fraud, forgery, undue influence or any allegation of lack of mental capacity.

When contesting a will (making an application for Family Provision) yes, you can make an application after probate is granted. In fact orders will not be made by the court until probate is granted. When a family provision claim is successful the court order is attached to the probate document and kept as a record of the variation of the will just as if the order was a codicil to the will. 

The reason you want to put the executor on notice of your intended claim is to seek an assurance from the executor that he or she will not distribute the estate until the finalisation of your claim. If the executor refuses to give that assurance and there is a real threat that the estate is going to be distributed you would be entitled to seek an order from the court to stop any distribution.

doyles STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria


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Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 13, 111 Elizabeth Street ,
Sydney NSW 2000

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Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 11, 456 Lonsdale Street,
Melbourne VIC 3000

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