Contesting a Will in Queensland
The passing of a loved one is a difficult time for everyone, and it can be made much harder when someone decides to contest the Will of the deceased person.
What does “Challenging a Will” mean?
You likely have a friend of a friend that has challenged or contested a Will or you have at least heard about it happening, but what does this actually mean at law? Well, challenging a Will can generally mean one of two things:
- The first option is when the validity of the Will is questioned, which usually boils down to whether it was signed and witnessed correctly or if the testator (the person making the Will) had legal capacity to sign the Will or if they were coerced into signing it. If successfully challenged, a Court can strike certain parts of the Will or throw it out entirely depending on the circumstances.
- The second option is where a person believes that they did not receive adequate provision (a cut or share) from a deceased’s Will, and takes the matter to court to try to have the Court order that the terms of the Will be varied, so that they receive a (bigger) share.
The second option is far more common that than the first, which is why it is the subject of this article. But before we continue, we should clear up any confusion and stop referring to the second option as ‘challenging the Will’ and instead refer to it by what it is known as at law, which is a Family Provision Application (“FPA” for short).
How does an FPA work?
In Queensland (and in most of Australia), the recipe for an FPA is as follows:
- The deceased generally must have lived / died in the state, but more importantly held property here.
- The prospective applicant must be an ‘eligible person’ under the legislation, which generally includes spouses / partners, children (biological, step, or adopted), and dependents.
- The prospective applicant believes that they received an inadequate share from the deceased estate for their proper maintenance and support – it does not matter if they received nothing, a small distribution, or 99% of the estate, it comes down to their belief – and they have need for a distribution from the estate.
If these boxes are ticked, then the prospective applicant can make an FPA and there is nothing that anyone can do to stop them. It also helps if the deceased estate has value (usually $100,000+ is the minimum), because it would not be worth making the application if it is an estate of nominal value or if its liabilities outweigh its assets.
You might be wondering, who the applicant would be up against – the executor of the estate defends the application and is the party that is responsible for trying to negotiate a resolution between the applicant and the beneficiaries while acting in the best interests of the estate (and the beneficiaries).
Moreover, the FPA process can basically be boiled down to the following stages:
- Pre-litigation investigations and negotiations;
- Instigating court proceedings and filing evidence to support each parties’ case;
- Mediation; and
If the matter runs all the way through to the final stage, this can mean that the matter will drag on for months, if not years, and be very costly. However, it is key to remember that an FPA can settle at any time, with the majority of matters resolving at mediation, but it just depends on the attitudes of the parties involved and their willingness to reach a compromise, where the executor and beneficiaries agree to give the applicant a (larger) share of the estate.
Nevertheless, the FPA process and reaching a settlement is nuanced and requires appropriate legal advice to initiate and to achieve the best result possible in the circumstances. Often, lawyers will also need assistance from specialised court advocates, known as barristers.
Perception of FPAs
Depending on how your perspective, an FPA can either be a just legal mechanism or the epitome of everything that is wrong with the law. What we mean by this can be exemplified in these scenarios:
- If you were a dutiful (only) child to your father your entire life, especially after your mother passed away eight years ago, you might not openly say it out loud or even think it, but there would be at least the smallest expectation that you would receive something from your father when he dies. However, six months before his death, he began a relationship with a 22-year-old and decided to leave everything to her in his Will, which means you miss out completely on his million dollar estate. Here, you could make an FPA to try to obtain a provision from his Will, rather than letting the gold digger get everything.
- Alternatively, if your sibling estranged themselves from your mother thirty years ago after a huge fight over the sibling stealing money from your mother while they were under the influence of cocaine, it would only seem fair that you would receive everything under your mother’s Will, while your sibling is left nothing, especially considering that they had not spoken to your mother since the falling out. However, the sibling would have a right at law to make an FPA.
Regardless of the reasons behind making an FPA, it should be noted that a Court does not always make provision for an applicant, and if an applicant is successful, they might receive more or less than they wanted. A Court will look at a myriad of factors and determine each case on its merits, bearing in mind that they do not easily vary the final wishes of a deceased.
Accordingly, depending on how you look at it, FPAs, like a lot of things in law, can be a godsend or a scourge. In any event though, it is a part of our legal system, and it can be used to significantly change the terms of a Will.
Advice Always Required
Whether you want to make an FPA as a prospective applicant, are defending an FPA as an executor, or if you are involved in someone else’s FPA as an existing beneficiary, you will need shrewd and clear legal advice on your rights, prospects, and options. If you fit into one of these categories, please feel free to call Salerno Law to arrange an appointment with one of our experienced estates lawyers to discuss starting the ball rolling on turning your FPA problems into solutions.
Our team of lawyers provide clear and timely advice and services on all areas of Wills and Estates law Australia-wide. Given that the legislative requirements for the construction and content of Wills, their execution, probate and administration and more changes from jurisdiction to jurisdiction, it is highly beneficial to engage legal experts who are well-versed in these rules and regulations across all areas of Australia.
Contact one of our offices today to discuss any legal issues you may have from preparing Wills to challenging them.
By Steven Hodgson & Michael Millin