Contesting Wills

What you need to know.

More and more aggrieved persons are now actually contesting a deceased’s Will. This is commonly referred to as a “Family Provision” claim. Often it is referred to as an “FPA” (meaning “Family Provision Application”) or a “TFM” (meaning “Testator’s Family Maintenance”).

If the deceased person had a spouse (including de facto), child or children (including adult children and step-children) or certain other categories of dependant/s, then the law says that the deceased person had a duty to provide for them in their Will in the manner of a “prudent and caring” or “just and wise” spouse/parent/provider. If the distribution under the Will does not adequately provide for their needs for their “maintenance and support,” then they are entitled to make a claim to seek further provision from the estate. A court can then override the Will and make an order that they receive further provision from the estate.

Similarly, If the deceased did not leave a valid Will, the same principles apply if the laws of intestacy do not result in adequate provision being made for the maintenance and support of the spouse, children or dependant/s.

Just what is “adequate provision” depends on the circumstances of each case. There is no mathematical formula or minimum amount that applies to each case. The amount of provision that the court may award the claimant will depend on many factors, such as:

  • the size of the estate,
  • the number and type of claims against the estate,
  • the financial position of each of the claimants and beneficiaries, and
    whether each of the claimants and beneficiaries had a good relationship with the deceased; and if not, the reasons for the strained relationship (often the deceased may have made statement in the Will as to why the person was not left any benefit).

The following time limitations apply in Queensland:

  • within six months after the date of death, the claimant must notify the executor that he/she intends to claim further provision from the estate, and
  • within nine months after the date of death, the claimant must commence court action to claim further provision.

These time limits can be extended by the court in exceptional circumstances. However, it is too late to claim further provision if the estate has already been fully distributed.

If you are the executor/administrator of the estate, we can represent you to respond to a claim for further provision. In this type of will dispute, all the legal fees will ordinarily be paid by the estate.