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Challenging a will in QLD

The difference between Challenging a Will or Contesting a Will?

  • Challenging a Will involves questioning its legitimacy. Grounds for this include doubts about the testator’s mental state at the time of signing or suspicions of the Will being fraudulent.
  • Contesting a Will, on the other hand, is about disputing its contents. It is based on the belief that the Will fails to provide sufficiently for someone with a close relationship to the testator. In contesting, the individual seeks judicial involvement to ensure equitable distribution of the estate.

The challenge procedure is regulated under the Succession Act 1981 and is accessible to any party possessing a legal interest in the deceased’s estate.

The contention revolves around the assertion that the Will lacks validity and, consequently, should not receive the court’s endorsement for a Grant of Probate.

The challenge procedure is regulated under the Succession Act 1981 and is accessible to any party possessing a legal interest in the deceased’s estate.

Challenging the Validity of a Will in QLD

An individual may contest a Will if they hold a stake in the estate. Holding a stake implies being named in any version of the deceased’s Wills or being eligible for inheritance in the absence of a valid Will (intestate).

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The legitimacy of a Will can be contested for several reasons, such as:

  • Non-compliance with the formalities required for a legitimate Will
  • Incapacity of the Will-maker at the time of the Will’s creation
  • Disapproval by the Will-maker of the Will’s contents
  • Coercion placed upon the Will-maker
  • Deception (fraud) or forgery involved in the Will’s formulation

How To Challenge A Will In QLD

A challenge can be brought either before or after probate is granted.

Before a Grant Of Probate

In Queensland, when an individual seeks to challenge a Will, the initial step is to lodge a probate caveat with the Supreme Court’s Registry.

The individual who lodges this caveat is referred to as a “caveator.” Following the filing of a probate caveat, the court is precluded from issuing a Grant of Probate without first notifying the caveator.

Should a caveat be lodged concerning an estate in Queensland and a probate application submitted, the court will notify both the caveator and the probate applicant. The caveator is then mandated to submit a supporting notice for their caveat within eight days from receiving the court’s notice.

Failure to submit this supporting notice within time allows the court to proceed with the probate application, disregarding the caveat. Conversely, if the caveator files a supporting notice for the caveat within time, the court is barred from granting Probate until the caveat is either retracted or dismissed.

Typically, resolving this issue necessitates adjudication by a judge at a hearing. Both the caveator and the probate applicant have the right to initiate legal action to contest the Will’s validity.

Before a Grant Of Probate

In disputes over Wills, prompt action is crucial to safeguard one’s legal interests. This urgency is heightened when someone seeks to challenge a Will after the court has already issued a Grant of Probate.

With probate granted, the executor gains the authority to gather the deceased’s assets and allocate them as specified in the Will. Should there be doubts about the legitimacy of a Will after a Grant of Probate is in place, the concerned party may request the court to compel the executor to:

  • Return the Grant of Probate to the court registry.
  • Seek a Grant of Probate under “solemn form.”

A “solemn form” proceeding is a judicial process to ascertain if a Grant of Probate should be awarded for a Will. During such a proceeding, the court examines all evidence pertaining to the Will’s authenticity.

Time Limits

At the outset of estate administration following a death, securing a grant of probate often ranks among the executor’s initial responsibilities.

This grant, conferred by the court registry, confirms the executor’s legal capacity to manage the deceased’s estate. Whether a grant of probate is necessary hinges on various factors, and it is not always a mandatory step for executors.

Should the situation warrant a grant of probate, its acquisition empowers the executor to administer and allocate the estate’s assets.

After the estate’s distribution, contesting the Will’s validity becomes considerably challenging. Thus, it is advisable to consult legal counsel promptly if there is a need to question a Will’s legitimacy.

Unsuccessful Challenges

Should you be contemplating a challenge to a Will’s validity, it might be prudent to file a probate caveat at the court registry. Be mindful that substantiating a Will’s invalidity necessitates substantial evidence for success. Should the caveat be dismissed and the challenge fail, the court could impose the litigation defence costs upon you.

It is important to note that a probate caveat is inappropriate for those wishing to dispute a Will’s provisions or for creditors of the estate. Lodging a caveat without valid legal grounds could result in the caveator being liable for associated costs.

Our firm specialises in Wills and Estates Law and stands ready to assist you in navigating the complexities of contesting a Will, ensuring the most favourable result.

Should you have queries regarding the timeframe for challenging a Will or the preparatory steps required, we urge you to reach out to our experts at 1300 229 180 for a comprehensive evaluation.

Important Notice

This article is provided for general interest and informational purposes only. It contains general information and is not tailored to individual circumstances. It does not constitute legal advice and should not be relied upon as such. Always seek the advice of a qualified legal practitioner for specific legal advice tailored to your needs and circumstances. While every effort has been made to ensure the accuracy of the information at the time of writing, applicable laws may change.

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Copyright © 2024 Author Champion Contested Wills

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For our Edgecliff and Parramatta offices 02 8324 7512 between 8am and 6pm (Monday to Friday)

For Queensland call 1300 229 180 between 8am and 6pm (Monday to Friday) 

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