Last updated 5 August 2016
The will of a deceased sometimes involves a contest in the Supreme or District courts between persons interested in or affected by its existence, the will’s meaning or its effect.
Contesting grant of probate
A person may contend that a will is not the last will of the testator because:
- it was revoked by the testator
- the testator lacked mental capacity to make a will
- parts of the will were alterations or additions made after the will was signed by the testator.
In all of these cases, the validity of the will must be determined. The court decides the issue by granting or refusing to grant probate of the will, or by revoking an existing grant.
Contesting on point of construction
In some cases, the meaning of expressions used in the will may be unclear. For example, a testator may have made a gift in the will to ‘my nephew George’, when more than one nephew answers to that name, or the testator may have given ‘my house at Ipswich’ to a legatee and then sold the house after making the will and purchased a home unit at Ipswich.
The executor or a person interested in the estate of a deceased person may apply to the court for a decision on the construction of the will. The court will then resolve doubt about the meaning of the will by determining the meaning of the words used by the testator. Such an application must be made within six months of the date of death of the testator.
Family provision application
Generally, testators may leave their possessions and money to any people or causes they choose. However, if the deceased’s close family or dependants will suffer hardship as a result of the deceased’s decision to give money or property to others, a family member may bring a court action for provision from the estate of the deceased.
The Succession Act 1981 (Qld) (Succession Act) allows courts to award family members or dependants a portion of the deceased’s estate, even though the deceased made no provision or an inadequate provision for them in the will (ss 40–44 Succession Act).
Family provision applications may be brought even if the deceased died intestate, but such applications are rare.
When must family provision applications be brought?
Intending applicants must give the personal representative written notice of their intended application within six months of the death of the deceased (s 44(3)(a) Succession Act). Applicants must then commence the legal action within nine months of the death of the deceased (s 44(3)(b) Succession Act). No application can be commenced more than nine months after the death of the deceased unless the court grants an extension (s 41(8) Succession Act). This power is discretionary and the outcome of an application must depend on the particular facts of the individual case. The normal ground for granting an extension of time within which to apply is that applicants did not know of, or appreciate, the extent of their rights to apply for maintenance. Another important consideration is whether the estate has already been distributed to the beneficiaries.
Who may apply?
The following persons may apply for (but not necessarily be granted) provision from the estate:
- the deceased’s spouse—this includes a husband or wife who has been divorced from the deceased and who has not remarried before the death of the deceased, if they were receiving or were entitled to receive maintenance from the deceased at the time of death. ‘Spouse’ includes married and de facto couples. The definition of ‘de facto partner’ includes a same-sex partner. To fall within the definition, couples must have been living together on a genuine domestic basis for the two years up to the date of death (s 32DA Acts Interpretation Act 1954 (Qld), s 5AA Succession Act)
- the deceased’s child—this includes any child of the deceased, including a stepchild, adopted child or a child born outside of marriage (s 40 Succession Act)
- the deceased’s dependant—this includes any person who was being wholly or substantially maintained or supported (other than for a wage or some other payment) by the deceased at the time of the deceased’s death and who is:
- a parent of the deceased
- the other parent of a surviving child under the age of 18 years of the deceased
- a person under the age of 18 years (s 40 Succession Act).
When will family provision be ordered?
Not all applicants who feel that the deceased has not adequately provided for them may receive an order for provision from the court. The question is whether the applicant has financial need in all of the circumstances, so that it can be said that the deceased failed to make adequate provision for their proper maintenance and support (s 41(1) Succession Act).
An application cannot be made on the ground that the will was unfair or unjust in its distribution when, in fact, adequate provision for the applicant has been made in the will.
Principles applied by the court
In considering whether adequate provision has been made for the applicant’s proper maintenance and support, a variety of considerations are relevant. They include:
- the net value of the estate (i.e. its size after debts, funeral, testamentary and other expenses have been deducted)
- the financial position of the applicant
- the age, sex and health of the applicant
- independent means of the applicant because of any gift, transfer or other provision made by the deceased during their life, or from any other source
- the closeness of the relationship between the applicant and the deceased
- contribution of the applicant to the building-up of the deceased’s estate
- the character and the conduct of the applicant. The court has power to refuse the application if, in its opinion, the applicant’s character and conduct disentitles them to a share or an increased share of the estate.