Bell & Senior Logo

Can a Will be challenged in Queensland?

Litigation

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. A dependent of the deceased: This means any person who was being wholly or substantially maintained or supported by the deceased at the time of their death, and who is a parent, parent of the deceased’s surviving child (under 18), or a person under 18 years of age.

Estrangement Does Not Always Stop a Claim Many people believe that if they haven’t spoken to their parent for years, they cannot claim. This is a myth. The Court considers the reason for the estrangement and your current financial need. You may still have a significant entitlement.

Contact Bell & Senior Lawyers confidentially to discuss your eligibility. Call (07) 5532 8777.

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.

The Clock Starts the Moment They Pass Away You have only 6 months to notify the Executor of your claim. If you wait 7 months and the Executor has already distributed the assets to other beneficiaries, your claim is dead. Do not wait for the funeral or for ‘family emotions’ to settle before protecting your legal rights.

Contact our estates team now for an urgent eligibility assessment. Call (07) 5532 8777.

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.

experienced 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.

  1. Succession Act 1981 (Qld) s 41 (Estate of deceased person liable for maintenance). ↩︎

  2. Succession Act 1981 (Qld) s 40 (Definitions). ↩︎

Previous Question When is a Grant of Probate required in Queensland? Next Question Is a Will made overseas valid in Australia?
← Back to Wills & Estates
Call Us Book Time