Contesting a Will



Often beneficiaries are not content with their share of the estate and make an application to the courts to contest a will. As a general rule a person can leave what they want to who they want after all if such gifts was made prior to the person dying and subject to the person being of sound mind and uninfluenced then nobody would have the right to intervene.

Section 41 of the Succession Act 1981 (QLD) states:

… if adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

(1A) However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.

This creates a statutory obligation for the deceased to consider the needs of his dependants. Excluding a dependant from your will can be quite difficult but not impossible. If the dependant is quite affluent and not been supported by the deceased then it’s unlikely an application would be successful.

On the other hand if the dependant was unemployed or had a disability preventing them from working and the deceased gave the entire estate to charity then an application would likely succeed.

One of the most common complaints is that the deceased left one sibling considerably more than another. Other than section 41 there is no onus on the deceased to share the estate equally between the dependants and the Court has no jurisdiction to intervene.

Can I Prevent people from contesting my will 

No, a lot of people think they have nothing to lose by having a go and in most cases the costs of the application will be paid by the estate

Can I reduce the chances of people contesting my will?

Yes, simply call Dodd Bedford & Associates 4153 58580

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