Disputing a Will

Family Provision Application

If you believe you have been inadequately provided for under a will, you may be able to make a Family Provision Application ("FPA") to dispute the will. Queensland legislation allows an eligible person to make an application to the Court if they have not been adequately provided for under a deceased person's will.

Who is eligible to apply?

  1. Spouses (including de facto spouses)
  2. Children (including adult children and step-children)
  3. Dependants - which are defined as someone who was wholly or substantially maintained or supported by the deceased and who is a:
    1. A parent of the deceased;
    2. Parent of a child of the deceased; or
    3. Child of the deceased under 18

What other factors are taken into account?

  • The size of the Estate;
  • The nature and duration of your relationship with the deceased;
  • Any contributions you made to the deceased's Estate;
  • Any promises the deceased made to you;
  • Your financial needs;
  • The financial needs of the other beneficiaries or eligible individuals;
  • Any conduct you have participated in that would be considered 'disentitling'.

Other reasons to challenge a will

If you believe there are issues around the legitimacy of the creation of the will itself, there are various avenues through which you may be able to contest the will.

Lack of testamentary capacity

This may arise when the deceased suffered a mental condition at the time of making the will. For the will to be valid, the deceased must have been of sound mind, memory and understanding at the time they created the will.

You may be able to dispute a will if you think the deceased did not understand:

  • The nature and effect of the will;
  • The size of their estate; and/or
  • The claims of the beneficiaries

Undue influence

If you believe the deceased was being taken advantage of or controlled by someone at the time of making their will, and that the deceased was being influenced to create or re-write their will to benefit that person, the will may be able to be disputed. It can be difficult to prove undue influence, however the Court will take into account a variety of factors and evidence in these types of cases.

Fraud

If you think the deceased was duped into signing a will, you may be able to challenge that will on the basis of fraud. In these cases, the misleading party may have falsely represented that the deceased was signing another document, or concealed material facts about the will itself.

If you believe you have been deprived of your share in a deceased?s estate due to any of the above circumstances, contact us today to discuss your legal options.