Who can Contest a Will?

Many hold the view that as they have control of their possessions in life, they have control over what happens to their possessions after they pass away. At common law, this view is the law. However, it is also important to consider the needs of an individual’s family members, with consideration being given to what they receive from the individual’s estate. What exists at law is a balance between an individual’s right to freedom of disposition and the needs of their family members following their passing.

Under the Succession Act 1981 (QLD) (the Act) an Applicant can seek an order from the court in relation to an estate of a deceased person to provide from that estate a provision for:

    • the Spouse;
    • Child; or
    • Dependent of the deceased.[1]

    In isolation, the definition of the individuals that may make an application is restrictive. Take for example a partner in a Defacto relationship with the deceased or step child of the same, under these narrow definitions neither of these individuals would be able to bring a claim against the estate. These definitions have undergone legal interpretation and legislative change. These changes have expanded the group of eligible applicants to now include the following classes:

      • A Husband;
      • A Wife;
      • Registered Partner[2];
      • A dependent former Husband, wife or registered partner who
        • Was divorced by or from the deceased at any time, whether before or after the commencement of the Act; and
        • Had not remarried before the deceased’s death; and
        • Was on the deceased’s death receiving, or entitled to receive, maintenance from the deceased.
      • A defacto partner, within the definition provided in s 32D of the Acts Interpretation Act 1954 (QLD), for a continuous period of at least two years ending on the deceased’s death[3].

      A Child is defined as:

        • Any Child;
        • Step Child; or
        • Adopted children, of the deceased[4].

        A Step Child is specifically defined in s 40A of the Act.

        A dependent is defined as:

        • Any person who was wholly or substantially maintained or supported by the deceased at the time of the deceased’s death being:
          • A parent of the deceased person; or
          • The parent of a surviving child under the age of 18 years of that deceased person; or
          • A person under the age of 18[5]

        In addition to an Applicant meeting eligibility requirements for making a family provision application, the application must also be made within a particular time frame. Unless the court otherwise directs, no application of this nature will be heard beyond 9 months after the date of the death of the deceased[6]. If the Applicant is intending to make a claim against the estate, it would be important to notify the personal representative of the deceased no later than 6 months after the date of the death of the deceased. This is due the fact that after the 6 months have lapsed and with no notice of an application intended to be lodged against the estate, the personal representative may distribute the estate, which if distributed correctly would mean the personal representative is not liable to an action related to the distribution of the estate.[7] The effect this has on any subsequent application is the estate has already been distributed according to the will and rules of intestacy as the case may be, therefore there is nothing remaining in the estate to bring a claim against.

        Assuming the Applicant is eligible and the application is made in time, consideration is then given to the merits of the case. The merits depend very much on each Applicant’s circumstance. Consideration is usually given to the means of the Applicant and the size of the estate, but other relevant matters are also considered by the court in arriving at its decision.

        If you are of the view you are eligible to make a Family Provision application and require legal advice, please contact our office on (07) 5351 1185 and arrange an appointment with our estate’s lawyer.


        [1] Succession Act 1981 (QLD) s 41(1).

        [2] Succession Act 1981 (QLD) s 5AA.

        [3] Succession Act 1981 (QLD) s 5AA(2)(b).

        [4] Succession Act 1981 (QLD) s 41(9).

        [5] Re Cobb [1989} 1 Qd R 522.

        [6] Succession Act 1981 (QLD) s 41(8).

        [7] Succession Act 1981 (QLD) s 44(3).