Challenging a Will in Queensland
17 June, 2021Estate Planning, Estate Administration and Disputes, Trusts and SuperannuationWill and Estate PlanningWill DisputeWills & Estates
When a loved one passes away, their Will – and whether it is valid – comes under scrutiny.
Both beneficiaries of the Will and those who have been left out of it can feel that the Will may not have been created in a legally binding way, which can lead to them seeking to challenge the Will.
In this article, we’ll cover when a Will can be challenged, who can challenge it, how to challenge it, and more.
When can a Will be challenged?
A Will can be challenged if a person considers the Will is invalid. In Queensland, the validity of a Will can be challenged on a number of grounds, including:
- that the Will fails to meet the formal requirements for a valid Will as provided for in the Succession Act 1981 (Qld);
- that the Will-maker did not have testamentary capacity at the time the Will was made;
- that the Will-maker did not have knowledge and approval of the contents of the Will;
- that there was undue influence;
- fraud; or
- that there are suspicious circumstances surrounding preparation of the Will.
Who can challenge the validity of a Will?
In Queensland, a person challenging a Will must have an interest in the estate. These people include:
- a person named as a beneficiary or executor of the last Will of the deceased person;
- a beneficiary or executor of an earlier Will; or
- a person who would be a beneficiary of a deceased person under the statutory intestacy rules if the person died without a valid Will.
The Consequences of Challenging a Will
If the deceased’s last Will is found to be invalid, then the last valid Will made before the invalid Will applies. If there is no valid Will, then the estate will be distributed in accordance with the statutory intestacy rules.
When should a challenge to the validity of a Will be made?
Before a Grant of Probate is Made
If a Grant has not yet been made, a probate caveat should be filed in the Supreme Court of Queensland to prevent a Grant being issued to the proposed executor or administrator until the claim is resolved.
As an application for a grant is often made promptly after a person’s death, it is important that legal advice is sought without delay as to whether a probate caveat is appropriate in the circumstances.
A probate caveat is appropriate for the grounds listed above, but is not appropriate for a family provision claim.
After a Grant of Probate is Made
If a Grant has already been issued in relation to a Will that the applicant believes is invalid, an application can be made to the Supreme Court for the Grant of Probate to be issued in ‘solemn form’.
This means the Court will require the initial Grant of Probate to be returned to the Court, and a hearing will be held where the Court will consider the alleged invalidity of the Will.
Costs of Challenging the Validity of a Will
It can be difficult to establish evidence of the invalidity of a Will. Careful consideration of the evidence available should be made prior to lodging a probate caveat or an application for a Grant to be issued in solemn form, as an unsuccessful application may result in a costs order being made by the court against the caveator/applicant.
How to Challenge a Will or Fight a Challenge
The first step to either challenging a Will or fighting a challenge starts by retaining an experienced estate lawyer. An estate lawyer can advise you about the type of evidence you need and how to get it, and can also present your case to the court.
If you’re considering challenging a Will, or you’re the beneficiary of a Will that has been challenged by someone else, get in touch with our team. We’ve been helping our clients get what they’re entitled to since 1955, and our lawyers are experienced in handling complex will disputes and validity claims.
The content of this publication is for information only. The content does not constitute legal advice and should not be relied upon as such. You should obtain advice that is specific to your circumstances before taking any action.