Who can challenge a Will in Queensland?

It is a common misconception that you can leave your estate to anyone you choose without consequence. While you generally have testamentary freedom, Queensland law allows certain eligible people to contest your Will if they feel they have been unfairly left out or inadequately provided for.

This type of lawsuit is known as a Family Provision Claim.

Who is Eligible to Challenge a Will?

Under the Succession Act 1981 (Qld), only three specific categories of people are eligible to make a Family Provision Claim:

1. A Spouse: This includes a husband, wife, registered partner, or a de facto partner (who must meet the legal definition, typically having lived together continuously for at least two years).
2. A Child: This includes biological children, adopted children, and crucially, stepchildren. (A stepchild is someone whose parent is married to or in a registered partnership with the deceased).
3. A Dependent: This must be an individual who was substantially maintained or supported by the deceased at the time of their death, and is either a parent of the deceased, the parent of a surviving child under 18 of the deceased, or a person under the age of 18.

Siblings, cousins, friends, or unacknowledged carers cannot challenge a Will under a Family Provision Claim, regardless of how close they were to the deceased, unless they meet the strict definition of a financial dependent.

Can You Stop Someone from Challenging?

You cannot legally prevent an eligible person from attempting a claim. However, you can make their claim substantially harder to win.

A well-documented Will drafted by an experienced lawyer goes a long way. The court will look at your intentions at the time the Will was signed. If there is a clear, written rationale provided (often via a separate statutory declaration stored with the Will) explaining why someone was excluded or received a smaller share, the court is more likely to uphold your wishes.

[!WARNING] Estate Challenges Are Filed Within 9 Months of Death Any eligible person wishing to make a Family Provision Claim must apply to the court within 9 months of the date of death. For those challenging a Will, missing this deadline can permanently extinguish your claim. For Will-makers, the time to protect your estate is now, before a dispute arises.

Contact our Wills & Estates lawyers today to draft a legally defensible Will or to assess a Family Provision Claim.

Further Listening

In a recent episode of our 4CRB radio show, we discussed the rising trend of estate challenges due to soaring property prices. Listen to the full Legal Matters episode on Wills & Estates here to hear Andrew Bell explain how courts view these challenges.

We also covered estate challenges in blended families in detail on the Legal Matters: Blended Families episode — including step-child rights and how to protect your estate.

If you are concerned about your Will being challenged, or if you need to make a Family Provision Claim yourself, contact Bell & Senior today on (07) 5532 8777.