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Disputing a Will In Brisbane

When someone is disputing a will in Brisbane, they are either challenging the legality of a will or contesting the provisions contained in the document. Disputing a will can be a stressful and time-consuming process but ultimately worthwhile to ensure that the family and dependents of the deceased receive fair and just provision. This article explains the significance of disputing a will in Brisbane and defines the differences between challenging and contesting a will.

Disputing An Informal Will In Brisbane

In Brisbane, a will must be drafted according to the rules set out in the Succession Act 1981 (Qld). A formal, legal will must be a clearly decipherable document, preferably typewritten. The document must be formally executed (signed) and appropriately witnessed, and clearly indicate that it is the final will. Someone can dispute a will on the grounds that the document is invalid if there are any deviations from these statutory requirements. An interested party can challenge the validity of a will in the Supreme Court of Queensland. The court may still choose to probate an informal document even if it does not comply with the statutory requirements of a formal will.

Disputing The Validity Of A Will In Brisbane

Another ground for disputing the validity of a will is if there is a lack of voluntary testamentary intention on the part of the testator. A will is not legally valid if the document is the product of fraud or forgery, or the testator was unduly influenced to make provision for certain people.

An interested party can also challenge a will if the deceased was not capable of giving testamentary instruction. In such a case, the court will overrule the will if there is medical evidence to establish that the deceased lacked sufficient testamentary capacity at the time of making the will.

Disputing A Will In Brisbane: Eligibility To Challenge A Will

In Brisbane, only certain people have “standing” to challenge a will. Anyone who was named in the current will, or was a beneficiary of a previous will is eligible to challenge the will. In addition, a person has standing to dispute a will if they are entitled to inherit under intestacy law. In Brisbane, this includes close family members and dependents of the deceased.

Disputing The Provisions Of A Will In Brisbane

It is also possible to dispute a properly executed will that expresses the testamentary intentions of a capable testator.

In Brisbane, an eligible party can contest the provisions contained in a will through a Family Provision Claim. Disputing a will in Brisbane is only feasible if the testator was obliged to make provision for the claimant, and failed to leave an adequate bequest for the applicant. The court assesses a Family Provision Claim on the basis of a number of factors, including the financial need of the applicant in comparison to competing claims against the estate. The court will assess the claim bearing in mind whether a reasonably-minded testator would have made a more generous provision for the applicant. If the court finds that the claim has merit, they can order a redistribution of the estate to make an appropriate provision for the claimant.

Disputing A Will In Brisbane: Eligibility To Contest A Will

The Succession Act 1981 limits entitlement to contest a will to a small list of family members and dependents. The only people who can make a Family Provision Claim in Brisbane are the spouse or child of the deceased, or someone who was at least partially dependent on the deceased. A potential applicant who is not the deceased’s spouse or child will need to prove that the deceased was providing ongoing and substantial financial support for them prior to their death.

Time Limits For Disputing A Will In Brisbane

Anyone intending on disputing a will in Brisbane needs to be aware of the time limits involved in the different legal actions. If someone is contesting a will, they need to inform the executor of the estate within six months of the testator’s death, otherwise the executor will be free to distribute the estate’s assets. In Brisbane, an applicant must file a Family Provision Application within nine months of the testator’s death. The court may give permission for a late application, but the applicant would have to make a compelling argument to justify the delay.

In regard to challenging a will, there is no time limit but it is preferable to act before the court grants probate, as after that point it will be necessary to apply for a revocation of the probate grant.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.


Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.

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