Initiating a Family Provision Claim, which is the process of challenging a Will, or contesting a Will becomes imperative when you believe the Will is not legitimate, you have not received your rightful share, or you have been subjected to unjust treatment in the allocation of inheritance.
It is crucial to act promptly in such matters, as there are specific deadlines to adhere to after the passing of your loved one.
The first step is to confirm which pathway is appropriate for your situation - to contest the Will or challenge it. If you’re not sure of the difference, read through our article which explains the differences between contesting and challenging Wills.
Once you’re sure of which course of action to take, the next step is to confirm your eligibility.
Checking Your Eligibility to Contest or Challenge a Will
Am I Eligible to Contest a Will?
The right to contest a Will extends to any interested party. If you are wanting to contest the validity of a Will, you will need to provide evidence, or know where to get the evidence needed, to support your claim.
Am I Eligible to Challenge a Will with a Family Provision Claim?
Family provision claims are typically limited to specific categories of individuals who shared a significant relationship with the deceased.
In Queensland, the legislation provides that spouses, de facto partners, children (including stepchildren), and individuals who relied on the deceased for financial support are eligible to commence family provision proceedings to challenge a Will. The court evaluates these claims based on factors like the claimant's financial needs and the estate's overall value.
Once you’ve confirmed your eligibility, there are a series of steps to follow to successfully contest or challenge a Will.
How to Contest a Will
Stage 1 – Filing an Application
The application will need to specifically detail the alleged issues with the Will's validity with reference to supporting evidence. This may involve medical records, witness testimonies, and expert opinions.
Stage 2 - Mediation or Settlement
Parties may engage in a mediation to reach a resolution before heading to court.
Stage 3 - Court Proceedings
Should mediation fail, the matter proceeds to a final hearing. Each party presents their arguments and evidence, and the court will make a decision.
How to Challenge a Will with a Family Provision Claim
Stage 1 - Eligibility Assessment
The claimant establishes their eligibility to proceed with a family provision claim.
Stage 2 – Filing an Application
The application is required to be filed with a supporting affidavit outlining the basis for the claim.
Stage 3 - Responses
The executor of the Will and other beneficiaries are notified of the claim and are provided an opportunity to respond by filing their own affidavit evidence.
Stage 4 – Mediation or Settlement
Most matters are resolved at this stage following a mediation.
Stage 5 – Court Proceedings
If a settlement cannot be reached at mediation, the claim proceeds to a final hearing where both sides present their arguments and evidence, and the court will make a decision that is binding on the estate.
If you’re uncertain if your situation calls for contesting or challenging a will, read our guide to discerning The Difference Between Contesting or Challenging a Will.
If you are considering contesting or challenging a Will, it is important that you obtain expert legal advice in the first instance. Contact Argon Law for an experienced and thoughtful action plan.
