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Common Questions about Will Disputes and Estate Litigation: Part 2

It’s never easy to think about a loved one passing away. But when they do, and their estate matters need dealing with, it can be even more difficult. Children and other loved ones sometimes end up embroiled in a lawsuit, with respective agendas over the terms of the will. Unfortunately, contentions over money and inheritance can be fierce and difficult to navigate, thereby necessitating the need for expert legal representation.

The legal process can be confusing for various parties involved. If you find yourself in a situation where you have been unfairly left out of a will, this series for you. In Part 1, we provided a list of questions commonly asked during will disputes and estate litigation, and we continue this list today, answered by our lawyers.

It is common for someone to have depended on a person who recently passed away, who now finds themselves in a position without the financial support they were relying on. If you are not a blood relative to the deceased, and haven’t been named in the will, there is a reasonable likelihood that this may not be fair nor intentional.

Section 41 of the Succession Act 1981 (Qld) specifically sets out that the estate of deceased person is liable for maintenance. This means that a person financially dependent on someone who has passed away can have an entitlement to challenge a will or distribution of the estate to be provided maintenance.

As a financial dependant, challenging the will isn’t the only avenue to consider, particularly if the death was untimely. For example, it may be possible that the deceased was a member of a superannuation fund with a death benefit policy (effectively another name for life insurance). These policies are typically paid out to the people who were financially dependent on the deceased at the time of their passing. A person’s will cannot control or determine how superannuation benefits are to be paid out, and this is left up to the superannuation fund’s insurer for consideration.

Keep in mind that there are often multiple parties seeking to contest the will, and each with person’s valid interest and entitlement, your own interest can be diminished. 

Question #2: What are the time limits involved in family provision claims?

Under the laws of Queensland, there are strict time limits regarding family provision applications. It’s important to ask for legal advice immediately, especially if you truly wish to pursue an application. 

You should give notice to the will’s executor in writing about your intent to file a family provision application in court to be provided proper maintenance from the estate. You have 6 months to issue the notice of intent to make a claim for maintenance from the estate to the executor or personal representative of the deceased (s 44(3)(a) Succession Act).

After this, you must follow through with the filing of the application within 9 months of the date of death. This is because Section 41 of the Succession Act 1981 (Qld) states: “Unless the court otherwise directs, no application shall be heard by the court … unless the proceedings for such application be instituted within 9 months after the death of the deceased …”.

If you miss either deadline, you could forfeit your ability to claim for further and better provision from the estate. If you are out of time, the court may grant an extension in compelling circumstances but it is not guaranteed (s 41(8) Succession Act).

Question #3: Is it possible to content a will after probate is granted?

More often than not, a person is allowed to contest a will even after probate has been granted by the court. You only need to provide the executor with a notice of your intention to contest, but bear in mind that the same six-month period limit applies. It is crucial that you place your notice within the period to ensure that all your rights are upheld, ensuring that you will not be held liable for any distribution for the overall estate.

The Bottom Line

Estate litigation is not easy and requires significant time and effort to prepare and argue your case for a provision out of the estate. The cost of taking (or defending) such action can therefore be significant. Because of this, Roche Legal offers No Win No Fee representation for qualifying estate litigation matters.

If you wish to pursue an estate litigation matter, contact us for a free initial assessment from one of our “No Win, No Fee” lawyers in Brisbane. We are dedicated to helping our clients receive the rightful entitlements.

Book a consultation today.

This commentary is published by Roche Legal for general information purposes only and should not be relied on as specific advice. The content relates to Queensland law only and is subject to change over time. You should seek legal advice for any question, or for any specific situation or proposal, before making any decision.