Losing someone close to you can be an emotionally difficult time, and having to challenge a Will can make this all the more difficult. Challenging a Will can be complicated and strict time limits apply- so seeking legal advice early is imperative.
Under the Succession Act 1981 (QLD) the following categories of people are eligible to make a claim for further provision from an estate if they feel unfairly provided for under the Will:
- Husband or Wife of the deceased
- A de facto partner of the deceased
- A child of the deceased (this includes adopted and step children)
- A dependent former husband or wife of the deceased
- A person who was wholly or substantially maintained by the deceased at the time of death
To challenge a will and to make a claim under the Succession Act you must establish that inadequate provision has been made for you by the deceased.
The court will consider 4 things when deciding if adequate provision has been made from the Estate for your proper maintenance and support, namely:-
- Your financial position;
- The size and nature of the deceased’s estate;
- The totality of the relationship between yourself and the deceased;
- The relationship between the deceased and other persons who have a legitimate claim on the estate.
You may also challenge a will due to:
- Undue Influence – if someone attempts to influence the terms of the Will or if physical, psychological or threatening duress was placed upon the deceased the Will can be contested.
- Incapacity – if the deceased lacked capacity to make the Will meaning they did not understand the nature and effect of their Will they were signing or were unable to make rational decisions about how their estate is distributed the Will can be contested.
- Contract to Make a Will – sometimes people may choose to enter into a binding contract to make their Wills in a certain way. Problems occur when one of the parties makes a later Will which is different to the contract. On most occasions the other party is not told of the change or in some circumstances has passed away. Providing the contracts have been drafted correctly and can be enforced legally, a person affected by the breach of the contract may be entitled to make a claim.
Wright Clarke Solicitors gives consideration to all of your personal and financial affairs when drafting your Will. We examine your own financial position and the size of the estate to determine your needs relative to the value of the estate. During the estate planning process we look at both current and previous relationships that may entitle others to a claim on the estate. Contact our team today to discuss your Estate Planning needs.
Have you seen the other posts in our Estate Planning series?
Estate Planning Introduction: When to review your Will
Estate Planning Part One: How do I make changes to my Will
Estate Planning Part Two: The role of executors
Estate Planning Part Three: Challenging a Will