Contesting a Will in Queensland: What You Need to Know

Losing a loved one is difficult enough without discovering that their will does not provide for you, appears unfair, or may not reflect their true wishes. In Queensland, there are legal options available in some circumstances to contest or challenge a will, but strict time limits apply.

Contesting a will does not simply mean being unhappy with what you received. The law sets out who may bring a claim, what the court can consider, and when an estate may be redistributed. If you are considering contesting a will in Queensland, it is important to understand your rights early.

This article explains who can contest a will, the difference between contesting and challenging a will, key time limits, and how estate disputes are commonly resolved.

What Does It Mean to Contest a Will?

In everyday language, people often use the phrase “contesting a will” to describe any dispute about a deceased person’s estate. In Queensland, there are usually two main types of will disputes.

The first is a family provision application. This is where an eligible person argues that the will, or the distribution of the estate, does not make adequate provision for their proper maintenance and support.

The second is a challenge to the validity of the will. This involves arguing that the will itself should not be accepted as valid because of concerns such as lack of testamentary capacity, undue influence, fraud, suspicious circumstances, or failure to meet legal formalities.

These are different types of claims. The right approach depends on the facts of the case.

Who Can Contest a Will in Queensland?

Not everyone can contest a will in Queensland. For a family provision application, the law generally limits claims to certain categories of people.

Eligible applicants may include:

• A spouse of the deceased
• A child of the deceased
• A dependant of the deceased

The term “spouse” may include a husband, wife, de facto partner or civil partner, depending on the circumstances. A “child” may include a biological child, adopted child or stepchild. A “dependant” may include someone who was being wholly or substantially maintained or supported by the deceased at the time of death.

Eligibility is only the first step. Being eligible to apply does not automatically mean the court will make an order in your favour. The court must consider whether adequate provision was made and, if not, what provision should be made from the estate.

What Is a Family Provision Application?

A family provision application is one of the most common ways to contest a will in Queensland. It is a claim that the deceased person failed to make adequate provision for an eligible person’s proper maintenance and support.

This type of claim may arise where:

• A person was left out of the will
• A person received less than expected
• One beneficiary was favoured over others
• A spouse, child or dependant has significant financial need
• The deceased made promises during their lifetime that are not reflected in the will
• The estate distribution appears unfair in the circumstances

The court does not simply rewrite a will because someone is disappointed. The court considers a range of factors, including the applicant’s financial position, the size of the estate, competing claims from other beneficiaries, the relationship between the applicant and the deceased, and any relevant conduct.

What Is the Time Limit to Contest a Will in Queensland?

Strict time limits apply to family provision applications in Queensland.

Generally, a person intending to make a family provision application must give written notice of their intention to claim within a short period after the date of death and must file any court application within the required timeframe.

Because these time limits can be critical, you should seek legal advice as soon as possible if you are considering contesting a will. Waiting too long may affect your ability to bring a claim or may allow the estate to be distributed before your claim is made.

Can You Contest a Will If You Were Left Out?

You may be able to contest a will if you were left out, but only if you are an eligible person and the circumstances support a claim.

Being excluded from a will does not automatically mean the will is invalid or that the court will change it. The court may consider:

• Your relationship with the deceased
• Your financial circumstances
• Your health, age and earning capacity
• Whether you were dependent on the deceased
• The size and value of the estate
• The needs of other beneficiaries
• Any gifts or support you received during the deceased’s lifetime
• Any reasons the deceased may have had for excluding you

If you were left out of a will in Queensland, it is important to obtain advice before assuming that you either do or do not have a claim.

Can You Challenge the Validity of a Will?

Yes. In some cases, the issue is not whether the will was fair, but whether the will is legally valid.

A will may be challenged if there are concerns about:

• Testamentary capacity
• Undue influence
• Fraud
• Forgery
• Suspicious circumstances
• The deceased not knowing or approving the contents of the will
• The will not being properly signed or witnessed

A successful validity challenge may result in an earlier will being admitted to probate, or the estate being dealt with under intestacy rules if there is no valid will.

What Is Testamentary Capacity?

Testamentary capacity refers to a person’s legal and mental ability to make a valid will. A person making a will must generally understand the nature and effect of making a will, the extent of their property, and the people who may have a claim on their estate.

Concerns about testamentary capacity may arise where the deceased had:

• Dementia or Alzheimer’s disease
• Significant cognitive decline
• Serious mental illness
• Brain injury
• Heavy medication use
• Confusion or memory problems around the time the will was made

Medical records, solicitor file notes, witness evidence and expert reports may be relevant in determining whether the deceased had capacity.

What Is Undue Influence?

Undue influence occurs where pressure or coercion causes a person to make a will that does not reflect their true wishes.

Concerns about undue influence may arise where:

• The deceased was isolated from family or friends
• One person controlled access to the deceased
• A beneficiary was heavily involved in arranging the will
• The will changed suddenly or unexpectedly
• The deceased was vulnerable, dependent or afraid
• The terms of the will significantly favoured one person without clear explanation

Undue influence can be difficult to prove. Evidence of pressure, control, dependency, vulnerability and unusual circumstances may be important.

What Evidence Is Needed in a Will Dispute?

The evidence needed will depend on the type of claim. In a family provision application, relevant evidence may include:

• The will and any earlier wills
• Details of the estate assets and liabilities
• Financial records of the applicant
• Evidence of the applicant’s health, income and expenses
• Evidence of the relationship with the deceased
• Details of any support provided by the deceased
• Information about other beneficiaries and their needs

In a validity challenge, relevant evidence may include:

• Medical records
• Solicitor file notes
• Witness statements
• Previous wills
• Letters, emails or messages
• Evidence of the deceased’s mental state
• Evidence about who arranged or attended the signing of the will

Early legal advice can help identify what evidence should be preserved and obtained.

What Happens to the Estate While a Claim Is Being Made?

If a will dispute is raised, the executor or personal representative may need to delay distributing the estate until the issue is resolved. If the estate is distributed too early, it may create complications for the executor and beneficiaries.

Where a person intends to contest a will, it is important to notify the executor promptly and obtain advice about the necessary steps. Acting quickly can help prevent estate assets being distributed before the claim is properly considered.

What Are the Risks of Contesting a Will?

Contesting a will can be worthwhile in appropriate cases, but there are risks. These may include:

• Legal costs
• Delay in the estate administration
• Stress and family conflict
• Uncertainty about the outcome
• The possibility of an adverse costs order
• The possibility that the estate is smaller than expected

Before commencing a claim, you should obtain advice about the strength of your case, the likely costs, the value of the estate, and whether settlement may be possible.

How Can an Estate Litigation Lawyer Help?

An estate litigation lawyer can help you understand whether you have grounds to contest or challenge a will in Queensland.

A lawyer may assist by:

• Advising whether you are eligible to bring a claim
• Explaining relevant time limits
• Notifying the executor of your claim
• Reviewing the will and estate documents
• Gathering evidence
• Assessing the strength of your case
• Negotiating with the executor or other beneficiaries
• Representing you at mediation
• Preparing court documents 
• Advising on settlement options

Because estate disputes often involve strict deadlines and sensitive family issues, early advice can make a significant difference.

Frequently Asked Questions About Contesting a Will in Queensland

Can I contest a will in Queensland if I am not named in it?

Possibly. You likely will still be able to contest a will if you are an eligible applicant, such as a spouse, child or dependant, and the will does not make adequate provision for you.

Can siblings contest a will?

A sibling cannot usually contest a will simply because they are a sibling. However, a sibling may have a claim if they fall within an eligible category, such as being a dependant of the deceased.

Can a stepchild contest a will in Queensland?

A stepchild may be eligible to bring a family provision application in Queensland, depending on the circumstances. Legal advice should be obtained to confirm eligibility.

What if the deceased had dementia when they made the will?

If there are concerns that the deceased lacked testamentary capacity when the will was made, the validity of the will may be challenged. Medical evidence  may be important.

How long does contesting a will take?

The timeframe depends on the complexity of the dispute, the value of the estate, the evidence required, and whether the parties can reach a settlement. Some matters resolve quickly, while others take significantly longer.

Speak With a Queensland Estate Litigation Lawyer

Contesting a will in Queensland can be complex, emotional and time-sensitive. Whether you have been left out of a will, received less than expected, or have concerns about the validity of a will, it is important to understand your rights before the estate is distributed.

A Queensland estate litigation lawyer can explain your options, protect your position, and help you take the next step with confidence.