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challenge a will family provision application estate litigation lawyers queensland

Challenging a Will and Claiming against an Estate

I recently had a meeting with Trevor Benson from InfocusMoney Management. Trevor asked me a question on behalf of a client of his about making a claim against an Estate of a recently deceased relative. It led to a discussion on the general principles applied by the Courts when a claim is made against a deceased estate in Queensland.

Lee Nevison, Barrister, recently published a paper that dealt with this issue. As to general principles with respect to the determination of family provision applications in Queensland, the following will be a guide:

  • A party must fall within the one of the categories of eligible applicants to have standing to pursue an application. These categories include:
  1. A spouse (including de-facto spouse) of the deceased; and
  2. Children (including step-children) of the deceased; and
  3. Dependants of the deceased.
  • Any application must be commenced within nine months of the date of death of a deceased, unless leave of the Court is granted outside that time for the application to be heard. Notice should be provided to the Executor of the Deceased Estate within 6 months from the date of death that a claim will be made;
  • Courts do not simply re-write Wills because a claim is made – there is definitely no guarantee that a claim will be successful;
  • There is no principle of paramountcy of entitlement for a spouse or for equality between siblings – again reinforcing the fact that there is no guarantee of success;
  • Claims in small estates will be discouraged. I have personally been involved in a case where I had to advise a client to settle a claim at an early stage, given my concern that the Estate did not have enough assets to warrant a claim, and there was a chance of costs being ordered against my client. I have previously posted a blog on this issue.
  • Courts will approach the matter by determining what a wise and just, as opposed to a fond and foolish Willmaker,would have done in all the circumstances: Bosch v. Perpetual Trustee Co Ltd [1938] AC 463;
  • What is “adequate” and “proper” will vary depending on the facts and circumstances of each individual case;
  • Proceedings will be determined on a two stage process involving a range of considerations. If a Court is satisfied that adequate provision has not been made, then a Court will exercise its discretion by determining, what, if any, provision should be made:  Singer v. Berghouse (1994) 181 CLR 201.

These principles highlight the importance of giving thorough consideration to a claim before one is made, given that there is no guarantee of a claim being successful. It also highlights the importance of getting properly qualified professional estate planning advice if there is any prospect of a claim being made against your estate.

Claiming against an Estate – What are the next steps?

Please contact me if you have any questions at all on claiming against an estate or any estate litigation matters.

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Chloe Kopilovic

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Chloe Kopilovic

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