Estate litigation: An unfair Will

It is usually a very emotional and difficult time when someone close dies. This can be further exacerbated if upon reading the person’s Will, a loved one feels that they have not been treated fairly by the deceased. In this article, Special Counsel Rebecca Edwards from HopgoodGanim Lawyers’ Estates and Succession team explores some of the important things to consider when someone dies leaving an unfair Will.

Being treated unfairly in a Will can take many forms, such as being completely excluded from provision in a Will, which we discuss in a related article. Other times, being treated unfairly might mean not receiving an adequate share of the estate, or being given only a small token gift or a right of residence instead of a property outright, as some examples.  

There are several ways to challenge a Will. Where a person feels unfairly treated, they might make a Family Provision Application seeking better provision from an estate. Our article Challenging a Will: Top 5 FAQs contains more information about Family Provision Applications.

The law relating to challenging Wills is state-based. This means that each state and territory has its own laws about succession law, including about challenging Wills. This article focuses on the law in Queensland.

In Queensland, a challenge to a Will by way of Family Provision Application is subject to time limits.  Firstly, notice should be given to the executor of the unfair Will within 6 months of the date of the willmaker’s death. Secondly, within 9 months of the date of the willmaker’s death, the application must be filed in the court.

That said, it may be possible to challenge an unfair Will outside these time limits with the court’s approval. However, there are no guarantees and there is a risk, for example, that the executor may distribute the estate or that the court may not allow the challenge out of time. If you are considering challenging an unfair Will outside the time, you should obtain legal advice as quickly as possible.

When it comes to Family Provision Applications, there are a variety of issues to consider when looking at whether the provision made was inadequate. The list below is not exhaustive, but it gives an idea of the types of issues the court might look at:

1. the size of the estate;
2. the applicant’s financial circumstances;
3. the applicant’s health; 
4. the relationship between the applicant and the deceased, as well as the character and conduct of the applicant; and
5. any contributions to the estate by the applicant.

There may also be other grounds available for challenging a Will depending on the circumstances; including, for example, if the:

1. ‘Will’ falls short of the necessary legal requirements to be considered a Will;
2. Willmaker was unduly influenced in making the Will; 
3. Willmaker lacked the requisite capacity to make a Will.

HopgoodGanim Lawyers has a dedicated Estates and Succession team who can provide you with expert advice and assistance if you believe that you have been unfairly treated under a Will.