Contesting a Will in Brisbane | The Will Dispute Lawyers
Are you thinking of contesting a will? Speak with our team to discuss the strength of your case to contest a will by calling us on 1300 368 255.
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Contest a Will

Contest a Will in Brisbane

 

If a Will is made by a Deceased person without testamentary capacity, you may contest the Will and seek that it be set aside so that an earlier Will should apply.

 

For a Will to be valid, it must be made by the Deceased person with testamentary capacity. For a person to have testamentary capacity, they must know what a Will is and what it does, be able to recall their assets and liabilities, and appreciate and balance the differing claims that people may have to their estate. People are now living longer and develop cognitive impairments, which can reduce the likelihood of their continued capacity to make a Will later in life. Therefore if you are named in the second last Will of a Deceased person and you believe they lacked testamentary capacity to make their last Will, you can apply to the Court to have their last Will set aside, even if the Will was made by a solicitor. We know this because our Will and Estate Lawyers were successful following a Trial in the Supreme Court whereby a client contested a Will in Brisbane made by a solicitor in Queensland.

 

The legal requirements to successfully contest a Will in Brisbane are similar to the laws in all others states in Australia, but the processes differ state-to-state which is why you should talk to our Brisbane-based will and estate lawyers.

 

Before you take any steps to contest a Will, we encourage you to speak with us because the steps required to contest a Will in Brisbane will vary depending upon whether the Supreme Court of Queensland has issued a Grant of Probate or whether the Executor is still in the process of obtaining a Grant of Probate from the Court. At The Will Dispute Lawyers, we regularly act for clients who want to contest a Will through the Supreme and District Courts of Queensland.

 

To discuss the strength of your case to contest a Will in Brisbane or on the Gold Coast, contact The Will Dispute Lawyers today on 1300 368 255.

 

Can I contest a Will in Queensland?

To be able to contest a Will in Queensland, you need to be able to prove that you have some interest in the Deceased’s estate.  That is, you need to show that you are named in either the last Will of the Deceased which is the subject of the challenge, or that you are named in a prior Will of the Deceased. If you can establish this standing, you are entitled to contest a Will and seek Orders of the Court that the Will should be set aside.  If you cannot establish this type of standing, you may not be able to contest the Will.

What evidence is needed to win?

There are a number of factors which the Court will consider before making a determination whether or not a Deceased person had capacity to make a Will. These include whether:

  • Alzheimers or Dementia is listed as a cause of death on the Death Certificate;
  • The Deceased made their Will under intense pressure from a family member or friend;
  • The Will was prepared on the basis of the wishes of someone other than the Deceased;
  • The signature of the Deceased was witnessed on the Will by people who the Deceased did not know and who weren’t the lawyers who prepared the Will;
  • The Deceased was living in a nursing home or was in hospital at the time the Will was made; and
  • The signature does not look like the Deceased’s ordinary signature.

What is the legal test for capacity to make a will in Queensland?

To make a valid Will in Queensland, a Deceased person must:

  1. Know what a Will is and what it does;
  2. Understand the assets and liabilities of his or her estate, including whether they are based in Queensland or other jurisdictions;
  3. Be able to evaluate the various claims different people have against his or her estate; and
  4. Not have some delusion affect their decision making process.

The Queensland Courts determine each challenge to a Deceased person’s capacity to make a Will based on the evidence produced by the parties. Whilst medical evidence is helpful, it is not essential. The observations of the Deceased’s friends and family will be just as helpful to determine whether the outcome of the Will contest.

Can a Will prepared by a solicitor be set aside?

It is possible to contest a Will prepared by a solicitor on the grounds that the Deceased person didn’t have capacity to make it. We know because we have done it for our clients in the matter of Ruskey-Fleming v Cook. In that case, the Supreme Court found that the opinion of the solicitor that the Deceased had capacity to make his will was not enough to convince the Court to rule that the Deceased did actually have capacity. The Judge determined the Deceased did not have capacity to make the Will and found in favour of The Will Dispute Lawyers’ client in the Will contest because there was plenty of medical evidence and notes from the nursing home where the Deceased lived proving that he didn’t know or understand what he was doing when the solicitor visited him at the nursing home to sign his Will.

Will my costs to contest the Will be paid from the estate?

If you can prove that you have an arguable case when you contest the Will, you have a good chance that your costs to contest the Will are going to be paid from the estate. This doesn’t necessarily mean you have to win your Will contest for your costs to be paid from the estate but at The Will Dispute Lawyers, we have never acted for a client where the Court hasn’t awarded our client receive their costs from the estate for their contest to the Will.

Do I need to live in Queensland to contest a Will?

You don’t need to live in Queensland to contest a Will in Queensland. The Queensland Courts have jurisdiction in relation to Wills which deal with estates with assets based in Queensland. Therefore, the only connection with Queensland required is the estate and us as the lawyers you instruct to contest the Will.

What will it cost to contest a Will in Queensland?

The cost to contest a Will in Queensland will depend upon many factors, such as whether your dispute runs to a contested Trial and how much evidence is called to resolve the Will contest. The Will Dispute Lawyers have run many successful Trials in the Queensland Courts. We know what it costs to contest a Will in Queensland so our lawyers can provide you with cost certainty before you take any steps to contest a Will.

Is there a time limit to make a claim in Queensland?

There is no specific time limit to contest a will in Queensland on the basis that the Deceased didn’t have capacity when the Will was made, but the longer you wait to speak to The Will Dispute Lawyers about contesting a Will, the harder it will be to succeed. If you are not contesting the capacity to make a Will but you are seeking further provision from an estate, time limitations do apply. To ensure you are protected, speak with The Will Dispute Lawyers well prior to six months from the date of the Deceased person’s death. If the estate has already been distributed by the Executor, no matter what your claim might be, it will be too late.

Do you provide free advice regarding contesting a Will?

Our initial telephone discussion with you is free.  During that discussion with one of our Will and Estate Lawyers, they will discuss the process to contest the Will and then should you wish to instruct us to represent you in your Will contest, we will reach an agreement with you regarding our payment terms.