After the death of a loved one, it can be devastating to discover that you have not been adequately provided for in their Will.

You may have been left out of a Will entirely. Or the provision made for you in the Will might be less than needed for your financial support. In either case, making a claim against the Estate may be possible.

We understand that contesting a Will or an Estate is not a decision to be taken lightly. Involvement in a Will dispute is emotionally demanding, given the potential to ignite conflict between family members still coping with the grief of losing a mutual loved one.

CLO Lawyers Queensland provides expert legal guidance and support for Chinchilla families confronting troubling and stressful situations, such as disputes relating to the Will or Estate of a departed person.

We can provide you with the legal advice you seek and speak plainly about your options, the process, and potential outcomes. And we are transparent about our fees.

Contact CLO Lawyers Today to Discuss Your Options In Relation To Contesting A Will Or Estate in Chinchilla.

Will Disputes in Queensland

Will disputes generally involve either challenging the validity of the Will or contesting the distribution of assets according to a Will.

Challenging the validity of a Will usually refers to challenging the legitimacy of the document itself. For example, where the deceased did not have sufficient capacity to make a Will, or the Will was the product of another person’s undue influence.

Click here to learn more about Challenging the Validity of a Will in Queensland.

Contesting a Will or Estate involves a claim that the distribution of assets among beneficiaries as stipulated in the Will is unfair and requires the court’s intervention. This topic is covered in greater detail below.

Contesting a Will or Estate in Queensland

As a general rule, a person may make a Will leaving their possessions and money to any people or causes they choose.

However, you can contest a Will if you are eligible (see the eligibility criteria below) and have been left out of the Will or been left without adequate provision for your maintenance and support by the deceased. This is referred to as a family provision claim. The claim is a contest between family members for the proceeds of a deceased estate. It is solely a question of the competing financial needs of family members.

In Queensland, a family provision claim can only be made in the following circumstances:

  • The deceased resided in Queensland at the date of death; and/or
  • The deceased owned land in Queensland.

Who Can Bring a Family Provision Claim?

To be eligible to make a family provision claim in Queensland, you must come within one of the following categories:

  • The deceased’s spouse
  • The deceased’s child
  • The deceased’s dependant.

The above categories of claimant are broader than they appear on the surface.

A “child” of a deceased person includes a stepchild or an adopted child.

A “dependant” is a person who is either partly or wholly maintained by the deceased at the date of the deceased’s death. It includes a person under 18 who was supported by the deceased at the date of death, regardless of the relationship between that person and the departed.

This could include persons such as the deceased’s grandchild, step-grandchild, brother or sister, niece, nephew, or foster child. It includes a parent of a child of the deceased under 18 or the deceased’s parent.

The definition of “spouse” includes married and de facto spouses, or partners in a relationship registered under the Relationships Act 2011 and can encompass former partners of the deceased who continued to be maintained by the deceased.

The process of pursuing a family provision claim can be complex and confusing. Suppose you believe you have been unfairly left out of a Will or have not been adequately provided for by the deceased. In that case, it is critical to seek legal advice. Our team of highly skilled estate litigation lawyers is here to guide and assist you in achieving the best possible outcome.

Proving Your Family Provision Claim

A claimant may demonstrate that they have been left without adequate provision for their maintenance and support by giving evidence as to their financial circumstances. This will include proof of income, expenses, assets, and liabilities. Any medical, educational, and lifestyle needs of the claimant can be considered. What amounts to “adequate provision” varies from case to case and is difficult to define.

A court can consider any disentitling conduct of the claimant, which may have justified the testator’s bequest. Disentitling conduct includes serious criminal behaviour, estrangement due to the claimant’s conduct, and drug or alcohol abuse.

Our CLO estate litigation team will provide you with an objective assessment of the strengths and weaknesses of your claim based on the facts and circumstances provided by you. An out-of-court settlement will be sought. Should it be necessary to pursue a judicial determination of your claim, we will guide and support you through the process.

Time Limits When Contesting a Will or Estate

Time limits are applicable when contesting a Will or Estate.

To contest a Will or Estate in Queensland, written notice of an intention to contest the Will must be given to the estate executor within 6 months of the departed’s date of death.

An executor is at liberty to distribute Estate assets after the expiration of 6 months from the date of death. Therefore, a failure to give notice by a claimant of a potential claim within this time frame might defeat the claim due to the disposal of all estate assets.

There is an additional time limit that applies to family provision applications. A claimant must file their application in court within 9 months of the deceased’s death.

“Out of time” applications can be made at the court’s discretion.

Intestacy

People who die without a Will are said to have died intestate.

Family provision applications may be brought in circumstances where the deceased died intestate, but such applications are rare.

The process of contesting a Will or Estate can be complex and confusing. The Wills and Estates disputes team at CLO Lawyers are highly skilled and experienced. They will treat you with care and sensitivity and achieve the best possible outcome. Contact us immediately using the contact form below to arrange a confidential consultation.

Superannuation Death Benefits – A Significant Area of Estate Disputes

Disputes over superannuation death benefits are on the rise. This is likely because superannuation typically forms a substantial part of the deceased person’s wealth.

A superannuation death benefit is the deceased’s superfund account balance and any death insurance payment paid after their death.

The purpose of a super death benefit is to provide financial support for the dependants of a superfund member. This usually includes the deceased person’s surviving partner and anyone financially dependent on the deceased.

Superannuation Death Benefit Disputes

You might assume, like many Australians, that the death benefits from the deceased’s super fund will be distributed to the beneficiaries named in the deceased’s Will, along with the Estate’s assets. It’s more complex, unfortunately.

Distribution of the deceased’s retirement savings is not determined by the deceased’s wishes expressed in their Will; it is up to the superfund’s trustee to make the final decision regarding the disbursement of the death benefit.

This is because superannuation accounts are not owned personally by the super fund member. They are held in trust for the fund member by the trustee of the super fund. And the Trustee is, therefore, responsible for disbursements under the fund.

One of the major areas of disputation arising from the administration of a deceased Estate is the rejection of a claim to a superannuation death benefit from the Trustee of the deceased’s superfund.

This may occur in circumstances of competing claims for the super death benefit, such as:

  • Competing claims of adult children of the deceased and the deceased’s surviving spouse and minor children;
  • Competing claims of a de facto spouse of the departed who was financially dependent on the deceased and a separated spouse who was not financially dependent on the deceased but is the preferred beneficiary under a super nomination made by the deceased 15 years before the date of death.

If you are a dependent of the deceased, the executor of the Will, or the administrator of the deceased Estate, you will want to ensure that the superannuation death benefit is dispursed appropriately. We will contact the super fund on your behalf to advise that the fund member has died and request the release of the super death benefit. We will ensure that your eligibility to claim death benefits is supported with the necessary information and documentation. We can also make objections on your behalf should the trustee’s decision not be in your favour.

The Wills and Estates disputes team at CLO Lawyers Toowoomba is experienced disputing and defending superannuation death benefit claims. Not only are we familiar with the complexity of superannuation, but we also appreciate the specific challenges of being embroiled in an Estate dispute while still grieving the loss of your family member or friend.

Contact CLO Lawyers Today to Discuss Your Options In Relation To Contesting A Will Or Estate.

Contesting a Will or Estate FAQ: Frequently Asked Questions

Challenging the validity of a Will usually refers to challenging the legitimacy of the document itself. For example, where the deceased did not have sufficient capacity to make a Will, or the Will was the product of another person’s undue influence.

Contesting a Will or Estate involves a claim that the distribution of assets among beneficiaries as stipulated in the Will is unfair. You may not be included in the Will or believe that the Will does not make adequate provision for your financial support. The remedy in these circumstances is to initiate a family provision claim.

To contest a Will or Estate in Queensland, the applicant must give written notice to the Estate executor of their intention to contest the Will within 6 months of the date of death.

There is an additional time limit that applies to family provision applications. A claimant must file their application in court within 9 months of the deceased’s death. “Out of time” applications can be made at the court’s discretion.

You can contest a Will if you believe that you have been unfairly left out of a Will or not adequately provided for by the deceased. In these circumstances, you can initiate a family provision claim.

In Queensland, a family provision claim can only be made in the following circumstances:

  • The deceased resided in Queensland at the date of death; and/or
  • The deceased owned land in Queensland.

You can contest a Will if you believe that you have been unfairly left out of a Will or not adequately provided for by the deceased.

The following categories of persons are eligible to file a family provision claim:

  • The deceased’s spouse
  • The deceased’s child
  • The deceased’s dependant.

The above categories of claimant are broader than they appear on the surface. For instance, a “child” includes a stepchild or adopted child. It is crucial to obtain legal advice to determine your eligibility to make a family provision claim.