Estate Litigation & Will Changes

Will Challenges:

The Succession Act 1981 (Qld) provides that certain persons can bring an action against an estate where they have not been adequately provided for. This is commonly referred to as a Family Provision Application or “FPA”.

Who can challenge a will:

An FPA can only be made by a spouse, child or dependant of the deceased. The Act defines ‘child’ to include a stepchild of the deceased. A person ceases to be a stepchild on the divorce of the deceased person and the stepchild’s parent.

Time limits and criteria for applications:

The legislation imposes time limits on when an applicant can make an FPA. Applications may be heard outside of the time limits in some circumstances. Applicants who file a FPA must show that adequate provision has not been made from the estate for their proper maintenance and support that they would otherwise have been entitled to generally.

Probate action:

Apart from a FPA, a probate action can be filed with respect to contesting a will and in turn the grant of probate. Such an action arises in circumstances including where the applicant can demonstrate that in all likelihood the deceased would have made provision for them in the will but for reasons that include among other things:

  • testamentary capacity of the testator;
  • testamentary intention of the testator; or
  • fraud and undue influence by a third party over the testator.

Probate actions are more complex than FPAs insofar as what the court considers in determining such an action.

Cost Orders:

Cost orders are within the discretion of the court but are often awarded against the estate, even where an applicant is unsuccessful. The court does have the discretion to refuse an order that costs be paid from an estate.

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