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How To Stop Someone Contesting A Will in Brisbane

During estate planning, it is not uncommon for a testator to express concern about the potential for their family to fight over their estate after their death. While there is no way to ensure there will be no legal dispute over a deceased estate, there are steps that a testator can take to mitigate the risks. This article outlines some approaches to the challenge of how to stop someone contesting a will in Brisbane.

Contesting A Will In Brisbane

A will is a legally binding document that outlines a testator’s wishes for their deceased estate after their death. While these instructions are legally enforceable, they must fall within prevailing state and federal law, and they are also not immune from contest.

Under the Succession Act 1981,eligible parties in Brisbane, including most beneficiaries, can lodge a Family Provision Application (FPA) with the Supreme Court of Queensland to contest a will. In Brisbane, the people who can make a FPA are the de facto partner or spouse of the deceased, a child or stepchild, and anyone who was financially dependent on the deceased at the time of their death. A claimant must establish that they are both an eligible party under the law and that the testator neglected to make fair provision for them from the assets of the deceased estate.

How To Stop Someone Contesting A Will In Brisbane

Legally, there is no way to altogether stop someone contesting a will in Brisbane. However, a testator is able to make testamentary decisions that minimise the chances of legal dispute.

The most effective approach is for a testator to draw up a will that actually makes adequate provision for anyone who is entitled to make a claim against the estate. The testator could, in addition, make clear in their bequests that consideration was given to each inheritance in light of the beneficiary’s current and future financial needs. Not only will this discourage family members and dependents from legal action, if the dispute proceeds to trial, the Supreme Court of Queensland will dismiss any application where the testator has acted in a reasonable way to make provision for their closest family and dependents.

This approach is sensible and fair, but it does not always account for a testator’s wishes for their deceased estate. There are some situations where although someone is a close family member, they are not someone that the testator wishes to provide for in their will.

There are other options that a testator can choose to minimise the risk of someone other than their chosen beneficiaries laying claim to assets of their estate. For instance, a testator can reduce the number of assets that are contained within the deceased estate. This approach is set out below.

How To Stop Someone Contesting A Will In Brisbane: Structuring Assets

A testator can reduce the total number of assets in the deceased estate by giving away some of their possessions during their lifetime. This is sometimes referred to as “early inheritance”, where a testator passes an asset to their intended beneficiary to help them set up in life, buy a house or gain a qualification. A testator can also make personal gifts to friends, or sizable donations to charity in the assurance that these gifts will not be subject to any posthumous legal dispute. This solution has notable benefits, particular given that the testator will have an opportunity to see the recipient of their gift enjoy the benefits. There are, however, some potential problems with this approach, including tax and social security implications that should be discussed with an accountant before the testator takes any such action. Most significantly, perhaps, it is important to ensure that the testator has sufficient resources for their own wellbeing and comfort during their lifetime.

A testator can also ensure that major assets that they do retain during their lifetime are directed away from their deceased estate through joint ownership. For instance, when a testator owns real property and bank accounts jointly with another person, these assets automatically transfer to the surviving owner when the testator passes away. Similarly, a testator can arrange for binding death benefit nominations for any superannuation and insurance policies, so that these payouts transfer directly to their chosen beneficiary and are never held in the deceased estate.

Time Limits For Contesting A Will In Brisbane

The Court will decline to hear a claim against a will if the application is brought outside the statutory time limits. In Brisbane, a claimant must tell the executor of the estate of their intention to contest a will in the 6 months after the testator’s death, otherwise the executor will begin to distribute the estate according to the will. After that, the claimant must file the FPA with the Court in the 9 months following the testator’s death otherwise it is unlikely that the court will agree to hear the application.

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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