contest a will for a qLD estate

+ HOW DO I CONTEST A WILL FOR A LACK OF CAPACITY?

You can challenge a Will on the basis that the Deceased person did not know what they were doing when the Will was signed.

This is known as a solemn form dispute because the Deceased person did not have testamentary capacity to make their last Will and therefore it should be set aside.

It can be a very complex area of law and so it demands the specialised experience of our lawyers should you believe a Will should be set aside due to the Deceased’s incapacity.

+ WILL I WIN MY WILL DISPUTE?

You will win your Will dispute if you can prove that the Deceased person didn’t leave you with sufficient money to cover your financial needs. You must prove to the Court that the Court should take money away from the beneficiaries already named in the Will so that they can Order that some money is to be paid to you.

Once this is proven, it’s not a case of whether we will be successful in your Will or estate dispute in Brisbane – it’s a case of how much you will receive from the estate. Our Will Dispute Lawyers will be able to provide you with this advice early in your Will dispute so you can make an informed decision about whether to settle your claim or whether you should progress your claim further.

+ WHAT ARE THE COMMON REASONS WHY A WILL IS CONTESTED?

There are a number of reasons why a Deceased person’s Will is contested at the time of their death and why commencing a claim against their estate is justified. These include:

1. There has been an argument or an estrangement between the Deceased and one of the beneficiaries named in the Will so that it’s longer appropriate that the beneficiary receives from the estate what has been left to them.
2. There has been a reconciliation between the Deceased and a spouse, child or step-child who was previously left out of the Will or left insufficient funds in the Will so that the terms of the Will no longer reflect their relationship with the Deceased at the time of death.
3. The Will was made a long time ago and may not take into account the length of the relationship between the Deceased and their spouse, or the changing value of the Deceased’s estate.
4. The Deceased had inherited funds from their spouse but upon the Deceased’s death they left their money to their natural children and excluded their step-children from what would otherwise be considered the inheritance from their biological parent.
5. An asset of the estate has been left to a beneficiary, such as a house, which has been sold by the Deceased or their Power of Attorney prior to the death so that the proposed gift fails and that person who was to receive the asset, receives nothing.
6. The Deceased did not think about their family circumstances properly or take advice from a Will and Estate Law specialised, or they prepared their own Will using a do-it-yourself Will kit.
7. The Deceased was unduly influenced by somebody to make a Will leaving money to them to the exclusion of other worthy beneficiaries.

+ WHERE CAN I GET HELP DISPUTING A WILL FOR A QUEENSLAND BASED ESTATE?

No matter the circumstances, if you do not accept that the terms of a Will are correct, we can help you to dispute a Will to ensure the estate of the Deceased does pass to the people who are legally entitled to receive it.

If you require further information about our estate litigation services and how you can dispute a Will in Brisbane, the Gold Coast or across Queensland, please contact us today with your questions, we're here to help.

+ I DON’T LIVE IN BRISBANE OR THE GOLD COAST. CAN YOU HELP WITH MY WILL DISPUTE?

The Will Dispute Lawyers have acted for many clients in their Will and deceased estate disputes no matter where they reside. We can act for you and take your instructions by phone, email or skype if you’re unable to visit us in person at either our Brisbane office or Gold Coast office. Your location doesn’t worry us – so long as the estate has a connection with Queensland, our lawyers can act for you in your Will and estate dispute in Brisbane.

+ WHAT IS A 'LACK OF CAPACITY' IF YOU ARE CONTESTING A WILL?

To make a valid Will in Queensland, you need to know what a Will is and what it does, know the extent of the assets and liabilities of your estate, be able to appreciate the claims that differing people might have to your estate and not have some insane delusion which affects your decision making process.

If a person made a Will when they could not understand these points, it can be set aside by the Courts because the person did not have what is known as testamentary capacity.

The litigation in relation to testamentary capacity is known as a solemn form dispute and we at The Estate Lawyers want to talk to you about any concerns you might have with a person’s capacity to make their Will.

+ WHO CAN CONTEST A WILL IN QLD FOR 'LACK OF CAPACITY'?

To dispute a Will in Queensland because of a lack of testamentary capacity you need to be a beneficiary of a prior Will of the Deceased person or otherwise potentially eligible to receive the Deceased’s estate if the last Will is set aside.

If you do not have standing, you will not be able to proceed.

+ WHAT EVIDENCE IS NEEDED TO SET ASIDE A WILL DUE TO INCAPACITY?

The Queensland Courts will look at all different evidence in a Trial to determine a person’s Testamentary capacity. No one piece of evidence is conclusive. Some evidence the Court will consider is:

• Was Alzheimers or Dementia is listed as a cause of death on the Death Certificate;
• Had QCAT has made Orders to appoint an Administrator or Guardian;
• Was the Will made after receiving legal advice? What do the notes of the solicitor say?
• Did the person make their Will under intense pressure from a family member or friend who receives a larger share?;
• Did the person give the instructions to make the Will or did someone else draft the Will?
• Was the signature of the Deceased was witnessed by people who the Deceased did not know and who weren’t the lawyers who prepared the Will?;
• What was the Deceased’s living arrangements? Was the Deceased was living in a nursing home or was in hospital at the time the Will was made; and
• Is the signature the Deceased’s ordinary signature?
• What does all of the medical evidence say?
• What were the observations of all of the Deceased’s family and friends about their behaviour?

+ CAN A WILL MADE BY A LAWYER BE DISPUTED?

Yes. A conclusion by a Lawyer is that the Deceased person had testamentary capacity to make their Will is not definitive.

The Estate Lawyers acted in the matter of Ruskey-Fleming v Cook whereby our client was successful in proving that the Deceased person did not have capacity to make the Will even though it was drafted and witnessed by a solicitor.

The reason the Will was set aside is that there was an abundance of medical evidence, of which the solicitor was not aware, which proved the Deceased did not have capacity to make their Will.

Therefore the opinion of the solicitor about their client’s capacity is important but the opinion of the Judge who hears the Trial and hears all evidence, including the medical evidence, is more important.

+ IS AN MMSE (MINI MENTAL STATE EXAM) PROOF OF TESTAMARY CAPACITY?

The opinion of a doctor is not conclusive as to whether a person has testamentary capacity or not. Testamentary capacity is a legal test, to be applied by a Judge following all evidence at Trial.

It is not a medical diagnosis to be determined by the results of a MMSE. Therefore the evidence relied upon by the doctor to reach their medical conclusion needs to be investigated and scrutinized.
A MMSE test does not test the elements to make a valid Will and so the test results are of little to no value in disputing a Will.

+ WILL MY COSTS BE PAID FROM THE ESTATE TO DISPUTE THE WILL?

If the litigation is caused because of the Deceased’s actions then whether you win or lose, your costs to dispute the Will are paid by the estate.

If however after the evidence has been disclosed it is clear that one party should not continue with the Will dispute because their will not win at Trial, it is possible for that person to be required to pay the other person’s costs from the date of receipt of that evidence.

At The Estate Lawyers we have never acted for a client where they were required to personally pay the costs of another person in any estate litigation.

+ WHAT IS THE PROCESS TO CONTEST A WILL IN QUEENSLAND?

If you wish to dispute a Will in Queensland, we want to speak with you as soon as possible because if you want to dispute the Will, you should file a Caveat with the Supreme Court to stop anyone from administering the estate.

Once the Caveat has been filed, we need to review your evidence with you to see what you have and what evidence would be needed to continue with dispute to Testamentary capacity.

Please contact The Estate Lawyers for more details about the process to dispute a Will in Queensland.

+ IS QUEENSLAND THE CORRECT PLACE TO CONTEST THE WILL?

The correct jurisdiction to contest a Will because of incapacity is not the location where the Will was made but the location where the Deceased was living before their death or the location where the majority of their assets are held.

The case law in Queensland is very similar to all other States and Territories of Australia but the procedures are different.

We would encourage you to talk to us about whether the Testamentary capacity Court proceedings should be filed in Queensland or elsewhere.

+ WHAT ARE THE POTENTIAL OUTCOMES OF THE SOLEMN FORM DISPUTE?

There are only two possible outcomes if your testamentary capacity dispute reaches a Trial.

The Queensland Courts can only determine whether the Will applies or whether it is set aside.

You can settle solemn form proceedings before Trial whereby you can split the difference between the two last Wills of the Deceased but at Trial, the Courts cannot do that and they must make a final determination.

+ WHAT TYPES OF ISSUES CAUSE WILL AND ESTATE LITIGATION?

There are many ways where there can be litigation in relation to a Will or an estate. The Will or the estate dispute can arise because:

1. Someone wants to dispute a Will on the basis that the person who made the Will did not have testamentary capacity when it was made. This is known as a solemn form dispute and if successful, the last Will of the Deceased person will not apply and the Will made prior to the last Will then applies to the Deceased’s estate;

2. A person does not think that the terms of a Will are fair and so they contest a Will because they are not happy with the amount of money left to them. They file Court proceedings to seek Orders that they are to receive further money from the estate. This is known as a Family Provision Application;

3. A beneficiary is not happy with how the Executor or the Administrator is doing their job to administer the estate. The beneficiary can take steps to hold the Executor to account and in the worst cases can apply to have the Grant of Probate or the Grant of Letters of Administration revoked and a new Executor of Administrator appointed;

4. The meaning of the Deceased’s Will might not be clear. Sometimes a Court Application is required because the Will does not properly gift away the Deceased’s assets or it is not clear what the terms of the Will mean. The people with an interested in the Deceased’s estate can appear and argue before the Court on any Will construction Application.

5. A person, possibly even the Executor of the Will wants to take money away from a beneficiary to settle a dispute to the Will or potentially other Will or estate litigation where there has been a contest to the Will or estate. A beneficiary who might have money taken away from them should receive legal advice and they can actively oppose those who want to take money away from them.

6. An Executor or a trustee might have a discretionary power meaning they can pay money to people as and when they deem fit. If you believe you should receive money but the Executor or trustee has not paid it to you, you can commence Court proceedings against the Executor or Trustee to ensure the money is paid correctly.

7. The Deceased’s Enduring Power of Attorney did not keep records of their actions or worse still, has misappropriated money. If this has happened and the estate does not have the money is should, either the Executor of the disappointed beneficiary should pursue the Attorney for the return of the incorrectly taken money, plus interest.

8. A superannuation fund for a Deceased person has the discretion where to pay the Deceased’s death benefits. The Executor should make submissions to the fund for the money to be paid to the estate but the Deceased person’s family members might make their own submissions for the death benefits to be paid to themselves directly rather than to the Executor of the Will for inclusion in the estate assets.

+ WHAT IS THE TIME LIMIT TO DISPUTE A QUEENSLAND WILL?

There is no specific time limit to dispute a Will for incapacity in Queensland, but the longer you wait to speak to The Estate Lawyers about contesting a Will, the harder it will be to succeed.

If you are not contesting the capacity to make a Will but you are seeking further provision from an estate, time limitations do apply.

To ensure you are protected, speak with The Estate Lawyers as soon as possible after the person’s death but certainly well prior to six months from the date of the Deceased person’s death.

If the estate has already been distributed, no matter what your claim might be, it will be too late.

+ WILL YOU TAKE ON MY CASE TO DISPUTE A WILL?

We want to talk with you if you are thinking of disputing a Will in Queensland because the Deceased person did not have capacity. We do not charge for an initial discussion with you and there is no obligation upon you to continue. The Estate Lawyers would welcome your contact.