A common question that is asked is whether estranged family members or step-children may be able to challenge their entitlements under a will. Although challenging the will usually comes after death, it is important for anyone making a will to understand:
- who is entitled to challenge a will; and
- whether the challenger may be successful
This will assist a maker to understand the implications when drafting their will.
How to Challenge a Will
If a person intends to challenge their entitlement, or lack thereof, under someone’s will then they will make a Family Provision Application to the Court. Not everyone can make a Family Provision Application and Queensland succession laws restricts who is entitled to make such an Application via the following three categories:
- the deceased’s spouse (not just a husband and wife, it can also be a de facto partner or the deceased’s former husband or wife or partner);
- the deceased’s child (biological, unborn at the date of death, adopted or step-child); and
- a dependent of the deceased (this includes anyone who has been wholly or substantially maintained by the deceased at the date of death but common examples include the deceased’s parent or a parent of the deceased’s child).
The most important consideration for the Court is whether the deceased will have made adequate provision for the applicant. Thus, someone listed as a beneficiary in the will may also make a Family Provision Claim in circumstances where the deceased has not left or provided an adequate gift to that beneficiary.
When must the application be made?
Anyone intending to make a Family Provision Application must give written notice to the executor of the estate of their intention to make a family provision application within 6 months of the deceased’s date of death. The applicant must lodge their Family Provision Application to the Court within 9 months from the deceased’s date of death.
If the applicant fails to deliver these notices by these dates they can still attempt to bring an application, however it will become more difficult for the applicant to make a successful claim. If an executor does not receive notice of a Family Provision Application by 6 months from the deceased’s death, then they are entitled to distribute the deceased’s assets in accordance with their will and it becomes more difficult to reclaim the deceased’s assets once distributed. The Court may accept a Family Provision Application brought later than 9 months from the deceased’s death, however the Court will consider:
- why was there a delay in making the application; and
- whether the estate has already been distributed and whether granting leave to make a delayed application will be at the disadvantage of the estate or beneficiaries under the deceased’s will.
To prevent a time delay a copy of the deceased’s will should be obtained after the deceased’s death. The following people are entitled to obtain a copy and inspect the deceased’s will:
- someone mentioned in the current will;
- someone mentioned in a previous will as a beneficiary;
- the deceased’s spouse, child or parent;
- a creditor or other person with a legal claim against the estate; and
- a person who is contesting the will by making a Family Provision Application.
The court’s main consideration is whether the deceased made adequate provision for the applicant in the deceased’s will for the applicant’s proper maintenance and support. This allows the court to make a case by case decision as to what is appropriate for the particular application that is in front of them. Because of this discretion, there are some general factors the court takes into account to determine whether the applicant has been adequately provided for in the will, these factors include:
- the applicant’s financial and health position;
- the size and nature of the estate;
- the relationship between the deceased and applicant; and
- the deceased’s relationship with other people who have a claim on the estate (including other beneficiaries) and the strength of other parties’ competing interest in the deceased’s estate.
If the court decides in the applicant’s favour, that doesn’t necessarily mean the applicant will receive everything they asked for in their application. The court has the ultimate discretion to determine what would be an adequate provision considering all the above factors.
Can a maker do anything to prevent a Family Provision Application?
An entitled person can make a claim against the will-maker’s estate once they pass. However, there are some steps the will-maker may take before they die to limit the size of the estate and the chance of someone making a successful application against the estate. These options include:
- a will-maker making reference in their will of the intended omission or reduced entitlement they have left someone in their will. While this does not completely prevent someone from making an application against the estate, it does assist the court in understanding the deceased’s reasoning when drafting their will. This is especially the case if the applicant is not financially dependent on the deceased;
- moving assets from the will-maker’s name alone to be held jointly with the intended beneficiary. This may be particularly important for properties where if the property is held as joint tenants, the will-maker’s share will not form part of their estate when they die but will instead be passed onto the other joint tenant/s;
- making a binding death benefit nomination for the will-makers superannuation and ensuring it is valid at the date of their death. Superannuation does not ordinarily form part of the deceased’s residual estate in their will. The will-maker should ensure they have a valid binding death benefit nomination form at the date of their death (it is typically valid for 3 years). If the beneficiary is not the will-maker’s estate, then the superannuation fund proceeds will be passed on to the beneficiary under the nomination form and the distribution cannot be challenged;
- creating a trust for the assets. Instead of the assets being distributed in the will, the assets can be gifted to a trust, where the trustee will distribute the assets in accordance with the trust rules as set out in the trust deed.
While these options may limit an applicant’s ability to make an application on the entire deceased’s estate, these options should not be taken lightly. Each option does impose their own complications such as transfer duty implications (for property) and new tax liabilities. It is also important to understand that even if a will-maker gifts property before death, some jurisdictions (such as New South Wales) allow assets to be clawed back to the estate after death. However, Queensland does not allow for the clawing back of estate assets.
If you have any questions or require assistance with drafting or updating your will in Queensland, please contact the property team at NB Lawyers for more information.
If you have any questions or require assistance with drafting or updating your will in Queensland, please contact the property team at NB Property Law or more information.
Kayleigh Swift, Associate
Kayleigh Swift is an associate in our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.
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(07) 3876 5111
Chloe Skubis, Lawyer
Chloe Skubis is a Lawyer in our Property team who assists with various conveyancing transactions. Chloe is very experienced in residential conveyancing and is a problem solver. She always provides efficient service to all her clients.
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(07) 3876 5111