Excluded from 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.
⚠️ Act fast, strict time limits apply. In Queensland, you must notify the executor within 6 months of the date of death, and file your application within 9 months. Missing these deadlines can forfeit your right to claim.
Free Eligibility Check
Tell us your relationship to the deceased and we will let you know whether you may be eligible to make a family provision claim, and what the time limits mean in your situation. It is free and there is no obligation.
Our Will Dispute Lawyers
Roche Legal acts for people contesting a will and for executors defending an estate, throughout Queensland. Our estate litigation practice is led by Sean Roche, the Director of Roche Legal, with appointments available at our Springwood office and in Brisbane at Level 34, 1 Eagle Street, Brisbane City QLD 4000.
Most estate litigation in Queensland is billed hourly, which is why many people never find out whether they had a claim worth making. We act on a no win no fee basis in will disputes, so you can get an answer on your prospects before you commit to anything.
Our will dispute lawyers can advise on family provision applications, on challenges to the validity of a will, and on defending an estate against a claim. We act for clients across Brisbane, Logan, the Gold Coast and the Sunshine Coast.
Contesting a Will
You may contest or challenge a deceased estate based on:
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.
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:
Standing
In Queensland, the only eligible people who have standing to bring a Family Provision Application against an estate are:
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.
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.
Our guide to contesting a will in Queensland goes through how those deadlines work in practice, including when a court will extend them and what happens if the estate has already been distributed.
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.
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.
It starts with a free consultation, where we assess your situation and give you an honest view of your prospects. From there we obtain the will, protect your time limits, gather the evidence about the estate, your circumstances and the other beneficiaries, and push for a negotiated or mediated outcome, which is how most claims end. The court steps and the deadlines that drive them are set out below.
How a family provision claim moves through the court
Written notice to the executor that you intend to claim. Once 6 months pass with no notice, the executor can distribute the estate and is protected if they do (Succession Act s 44(3)).
File the application in court (s 41(8); the court can allow a later start, but do not rely on it). Filed with your affidavit setting out why you are eligible and what provision you seek, and your solicitor’s estimate of costs to the end of mediation.
Serve the executor with the application and your affidavits, together with a list of everyone else who could claim and every beneficiary.
The parties agree a timetable for the claim in a consent order, which the court makes on the papers. A first directions hearing is listed within 28 days of filing, but it only goes ahead if the directions cannot be agreed.
The executor files an affidavit with the will, the grant, and the estate’s assets and liabilities at the date of death and now. Everyone eligible is notified and can apply to join by a set date, and the parties exchange their evidence.
Mediation, usually a full day. Costs estimates are exchanged five business days before. The mediator’s fee comes out of the estate in the first instance. Most claims settle here or earlier.
Based on Supreme Court of Queensland Practice Direction 14 of 2023 (family provision applications, paragraphs 31 to 42, as amended June 2024). Smaller estates within the District Court’s limit follow a similar path under District Court Practice Direction 8 of 2001, with no fixed return date, a draft directions order served with the application, and a dispute resolution plan before any mediation. Every matter differs; the court sets the actual dates.
Throughout the process, Roche Legal keeps you informed and in control. We have offices in Brisbane, Springwood, and the Sunshine Coast, and our no win no fee lawyers act for eligible claimants.
Who pays the legal costs of a will challenge?
Costs in a family provision application do not follow the ordinary rule that the loser pays. The court decides who pays, and the usual practice is that a successful applicant’s costs are ordered to be paid out of the estate, and the executor’s costs of upholding the will are paid from the estate as well. In practical terms, the estate rather than the person bringing the claim bears most of the cost of a successful application.
| How the claim ends | Your legal costs | The executor’s legal costs |
|---|---|---|
| Succeeds at trial | Usually ordered to be paid out of the estate | Paid out of the estate |
| Settles at or before mediation | As agreed in the settlement, commonly paid from the estate | Paid out of the estate |
| Fails at trial | Usually your own, and the court can order you to pay the executor’s costs if the claim should not have been brought | Paid out of the estate |
The usual practice in Queensland family provision applications. The court keeps a discretion in every case.
This is the usual practice, not a guarantee. Costs paid from the estate come out of the pool every beneficiary shares, which is one reason the court expects the parties to mediate early and can cap the costs any party may recover, particularly where the net estate is worth less than $500,000. Costs recovered from the estate are also assessed on a court scale and may not cover every dollar of the legal fees incurred, so any difference is met from the provision the court orders, within the fee cap in your costs agreement.
If we run your claim on a no win no fee basis, we cover the court filing fees and other disbursements, and costs are usually recovered from the estate. We also cap our fees at 40% of your gross inheritance however long the matter takes, so what you keep is always more than what we are paid, and an estate cannot be eroded by legal costs.
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Find Out Where You Stand – Free.
Our estate litigation lawyers offer a free initial consultation. If you have a qualifying claim, we represent you on a No Win No Fee basis. We have offices in Brisbane, Springwood, and the Sunshine Coast.