Across the globe, around 50% of the wills created get contested. In Australia, the rate of success when contesting is high, even more so in Queensland. So if you want to contest a will, how do you start the process?
Luckily, it is easier than many think if the circumstances are right. Read on as we discuss how to contest a will.
The good news is that you can contest a will immediately after probate has been issued. However, time is of the essence. Once the assets are gone, it is almost impossible to do this retrospectively.
How this happens depends upon the territory and state you are in. Therefore, you must get a local lawyer who has experience in dealing with similar situations.
Queensland does have time limits in which you can contest a will. The process starts by giving notice to the executor that the will shall be contested. This has to be given within six months of the date of death.
After six months, the executor can disperse the assets if no contest gets made. A second time limit applies to the nine months period under a family provision application, in which the claimant must file the applications with the court. In very special circumstances, applications may occur outside of this time frame.
When people create a will, they have the option to leave their belongings, money, and property to anyone they wish. However, in some instances, this may cause financial damage and hardship to the family left behind. In this case, the family can apply for a family provision application.
This will allow the court to give family members and dependents a portion of the estate. It can happen even if they were not included in the will at all. Family provision applications can even be brought if the person died without making a will (intestate).
There are several scenarios in which a will may be contested. Below are the main ones.
Consult with a legal professional if none of the above match your circumstances. Other special circumstances may occur which could be considered.
Many cases of contesting a will get settled before going to court, which is not included in official figures. This means the chance of a favourable outcome is probably higher than statistics suggest.
An average of 74% of family provision claims made in Australia are successful. This increases if you are living in Queensland, rising to 77%.
If you are a spouse making the claim, around 100% of claims made result in changes to the estate. When claims get contested by children of the deceased, this figure is around 71%.
There is no concrete way in which you can prevent someone from contesting a will in Queensland. Everyone has the right to object and get a fair hearing in court.
The only way around this is for the testator to construct the will in a way that is unlikely for the matter to occur, and this can be done in four main ways.
This is the process of giving away your assets while you are alive. When you die, the fewer assets you have, the less of an estate there is to give out. Items gifted before death are no longer included in the will as they then belong to someone else.
This is when two people own a share of the same property. This can get confusing, as unless evidence suggests otherwise the assumption is that their share is equal. Each owner can use their share separately, such as placing it in their will or gifting it.
When a person wants their share gifted to the other shareowner on death, it is a joint tenancy. When entering a joint tenancy, neither can subsequently make a gift of their share in their will unless the joint tenancy gets terminated in writing.
A trust can hold an asset in place to benefit one or more people. A trust deed needs establishing to do this and once in place, it cannot be undone. This hands control of the asset to a trustee and the benefits of it get lost along with control of that asset.
Life insurance and an estate are separate entities, and insurance money is generally protected from paying estate debts.
Make sure you nominate an actual person as the beneficiary. Don't leave life insurance money to the legal representative for the estate.
Now you know how to contest a will, you just need the right people to guide you through it. While simple, the legalities can get complicated and the process becomes drawn out. For this reason, you should find experienced local experts.
Koolik and Associates are your local divorce and family law experts with offices in North Lakes, Aspley, and Toowong. Contact us here to discuss your case and let us work on contesting a will on your behalf.
Please note the contents of this post is information only and not legal advice.
If you require legal advice it is best to contact one of our lawyers who can review your particular circumstances and then provide tailored advice according to your needs.