QLD WILL AND DECEASED ESTATE LITIGATION

+ WHY ARE QUEENSLAND ESTATES LITIGATED?

There are many events which can lead to litigation in relation to a an estate in Queensland. A Will or 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 signed. 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.

+ DOES THE ESTATE HAVE TO PAY FOR MY LEGAL COSTS IF I CONTEST THE WILL?

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

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.

+ CAN I FILE MY COURT PROCEEDINGS IN BRISBANE?

The correct jurisdiction to contest a Will 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. If the Deceased was not residing near Brisbane as at the time of their death, we can lodge the Court documents in the closest Supreme Court.

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 your Will and estate Court proceedings should be filed in Queensland or elsewhere.

+ ARE YOU CONSIDERING CHALLENGING A WILL BUT YOU ARE STILL NOT CONVINCED?

We want to talk with you if you are thinking of disputing a Will in Queensland. 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 so we can answer any preliminary questions you might have.

+ WHAT WILL HAPPEN IF MY DISPUTE GOES TO TRIAL?

If your Will and estate litigation matter comes before the Queensland Courts, both parties will make submissions to the Judge and the Judge will then be required to decide the outcome of the litigation.

The Estate Lawyers have significant Court experience and will ensure that your best case is put forward if your case comes before a Judge.