Will Disputes & Estate Litigation

Left out of a will? Received less than your fair share? You may have more rights than you think.

At Roche Legal, we understand that contesting a will can be one of the most emotionally difficult situations a person can face, coming at a time when you are already grieving. Our experienced estate litigation lawyers are here to guide you through the process with expert legal advice, compassion, and a clear focus on achieving the best possible outcome for you.

Queensland law gives eligible people the right to challenge a will — whether you have been entirely excluded, left with an unfair share, or believe the will itself was invalid. However, these rights come with strict time limits, and the clock starts from the date of death.

If you believe you have a claim, contact us for a free initial consultation. Roche Legal offers No Win No Fee representation for qualifying estate litigation claims. This means there is no financial risk in finding out where you stand.

Contesting a Will

You may contest or challenge a deceased estate based on:

• “Family Provision” legislation – this legislation allows for spouses (which includes de facto spouses), children (which includes stepchildren), and dependents to argue that they have not been adequately provided for in the Will. A Family Provision Application is the most common type of legal challenge to an estate.
• Will Validity – Challenging the validity of the Will when it was created, based on possible undue influence, fraud, forgery, or more commonly, the lack of the testator’s mental capacity.
• Unfair or improper distribution by executor/administrator – if you believe the estate is being distributed incorrectly or unfairly by the Will’s executor or appointed administrator.
• Other reasons.

If there was no Will left by the deceased, it is more difficult to challenge the estate however not impossible. When someone dies without a Will, they are said to have died intestate.

Read more about Queensland’s laws of intestacy and your rights as a beneficiary.

How the Claims Process Works

While every estate dispute is unique, most Family Provision Applications in Queensland follow a similar process. Understanding what to expect can help reduce the stress of an already difficult situation.

1. Free initial consultation — We assess your situation, explain your rights, and give you an honest view of your prospects at no cost.
2. Obtain the will and protect your time limits — We request a copy of the will and take any urgent steps needed to preserve your right to claim within the 6-month notification period.
3. Investigate and build your case — We gather evidence about the estate, your relationship with the deceased, your financial circumstances, and the circumstances of other beneficiaries.
4. Negotiate or mediate — The majority of claims are resolved through negotiation or court-ordered mediation, without the need for a contested hearing. We aim to achieve the best outcome as efficiently as possible.
5. Court proceedings if necessary — If a settlement cannot be reached, we will represent you in court. Our experienced litigators will prepare and present your case thoroughly.

Throughout the process, Roche Legal keeps you informed and in control. We have offices in Brisbane, Springwood, and the Sunshine Coast, and offer No Win No Fee representation for eligible claimants.

Time Limits

Each State of Australia has a different set of rules which apply when contesting a Will depending on where the deceased died.

In Queensland, the executor must be notified of a challenge within 6 months of the date of death. Then an application must be brought in the court within 9 months of the date of the deceased’s death.

If you wish to make a family provision application, but are outside of the 6 month time limit, but still within the 9 month time limitation, not all hope is lost. Urgent action can be taken to protect your right to make a claim, which may also prevent the estate from being distributed.

Family Provision Applications

Making a claim against a deceased estate is known as a Family Provision Application. At Roche Legal, we handle Family Provision Applications on a No Win No Fee basis — meaning you only pay if your claim is successful.

Family Provision applications are made under Part IV of the Succession Act 1981 (Qld) (“the Act”). Section 41 of the Act sets out the relevant principles that a Court will take into account when deciding a Family Provision application.

To be successful in your family provision application you must prove to the Court that you:

• have standing to bring a Family Provision Application. This means that you must be the spouse, a child, or dependent of the deceased; and
• have been unfairly and unreasonably excluded from a will (or been left an insufficient inheritance).

Standing

In Queensland, the only eligible people who have standing to bring a Family Provision Application against an estate are:

• spouse of the deceased e.g., husband, wife, de facto spouse, registered partner, or a dependant former husband, wife, or registered partner
• child of the deceased e.g., biological child, stepchild, child of a de facto spouse, or adopted child
• dependant of the deceased: any parent/child of the deceased who was being wholly or substantially maintained or supported by the deceased at the time of the deceased’s death.

However, just because a person has standing to bring a Family Provision application, it does not necessarily follow that they will be successful in actually challenging a will. If you are unsure whether you qualify, speak to one of our lawyers for free.

Unfair and Unreasonable Exclusion from Will / Insufficient Inheritance

The Court will consider a range of factors as to whether it should order further provision from the estate if you can show that further provision from the estate is needed to meet the costs of your proper maintenance and support. These considerations include:

• the size and nature of the estate
• your financial position and reasonable requirements for financial support
• the financial position and requirements of other beneficiaries and claimants on the estate
• the nature of your relationship with the deceased
• the nature of the relationships the deceased had with other beneficiaries and others who may have a claim

It is important to understand that the Court is not simply asking whether the will was “unfair” in a general sense – it is asking whether adequate provision was made for your proper maintenance and support, given your specific circumstances and your relationship with the deceased. A person who was financially independent and had a distant relationship with the deceased may be treated very differently to a person who was closely dependent on them.

In practice, Queensland courts have awarded further provision to adult children even where the deceased had reasons for excluding them, particularly where those children had genuine financial need. Every case turns on its own facts, which is why it is important to get personalised legal advice. Contact Roche Legal for a free consultation to discuss the specific circumstances of your claim.

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