Can a Will be challenged in Queensland?

Generally, people have the freedom to leave their assets to whomever they wish (Testamentary Freedom). However, this right is limited by the moral obligation to provide for one’s immediate family.

If a Will fails to make “adequate provision” for an eligible family member, the Supreme Court can rewrite the Will to be fair.¹

Who Can Contest a Will?

Only “eligible persons” can make a Family Provision Application (FPA):²

1. Possessive: Husband, wife, de facto partner, or registered partner.
2. Children: Biological, adopted, and step-children.
3. Dependents: A person who was being wholly or substantially maintained or supported by the deceased (e.g., a grandchild living with them, or a former spouse).

Siblings, cousins, and friends generally cannot contest a Will unless they fit into the “Dependent” category.

What is “Adequate Provision”?

There is no fixed formula. The Court considers:

• The applicant’s financial need (e.g., do they have a mortgage? poor health?).
• The size of the estate.
• The relationship between the applicant and the deceased (e.g., were they estranged?).
• The competing claims of other beneficiaries.

Strict Time Limits

Time is critical in estate litigation.

• Notice: You must give written notice to the Executor that you intend to claim within 6 months of the date of death.
• Filing: You must file your application in Court within 9 months of the date of death.

If you miss these dates, your claim is likely time-barred.

Other Grounds for Challenge

Apart from “fairness” (FPA), a Will can also be challenged if:

• Lack of Capacity: The deceased had dementia/Alzheimer’s and didn’t know what they were doing.
• Undue Influence: The deceased was coerced or manipulated into signing the Will.

Related Topics

• Dying without a Will
• Probate process
• Wills & Estates Practice Area

Expert Advice

Contesting a Will is legally complex and emotional. Our team can assess your prospects of success before you spend money on legal fees.

Been left out? Contact us for a confidential assessment. Call (07) 5532 8777.