If you are considering contesting a will in Queensland, a Family Provision Application (FPA) allows certain individuals to contest a will if they believe they have not been adequately provided for. Although the legal framework for this is well-established, there are still many myths about contesting a will in Queensland.
If you would like to start the process of contesting a will, you may be surprised to learn about the reality of initiating an FPA in Queensland. Keep reading to learn about the top 8 misconceptions around this process.
Myth 1: Only Biological Children Can Make a Claim
One of the most common misconceptions is that only biological children of the deceased can make an FPA.
In reality, Queensland law allows a broader range of individuals to apply, including stepchildren, adopted children, and dependents who can demonstrate a level of financial dependence on the deceased at the time of their death. The Succession Act 1981 outlines the categories of eligible applicants, which also includes spouses and de facto partners.
Myth 2: A Small Gift in a Will Avoids an FPA
Many people mistakenly believe that by including a small bequest, such as a token sum of money, they can prevent someone from contesting the will. This is not the case.
If an eligible applicant can demonstrate that their provision in the will is insufficient given their financial needs, relationship with the deceased and other relevant factors, the court may adjust the provision from the estate.
Myth 3: Large Estates Guarantee Larger Provisions
Another misconception is that larger estates will automatically result in larger provisions for applicants. However, the size of the estate is just one of many factors the court considers.
The court also looks at the applicant’s:
- financial situation
- health
- age
- nature of the relationship with the deceased
Even if an estate is large, an applicant may not receive substantial provision if their financial needs are already met.
Myth 4: Making a Claim is a Simple Process
FPAs can be complex and time-consuming. Many people mistakenly believe that these claims are straightforward and can be resolved quickly.
In reality, the process can involve gathering substantial evidence. Evidence may include financial records, personal testimonies, and can require navigating complicated legal procedures. Legal advice and representation are often necessary to ensure the claim is presented effectively.
Myth 5: There Are No Time Limits When Contesting a Will
In Queensland, an eligible applicant has six months from the testator’s date of death to notify the executor of their intention to make a claim.
An applicant has nine months from the date of death to file the application in court. However, it is advisable to act as quickly as possible, as delays can complicate the process and potentially affect the outcome.
Myth 6: The Deceased’s Intentions Will Always Be Honoured
Some believe that if the testator explicitly states their intentions and reasoning behind not providing or providing only a small amount to someone in a will or in a separate statutory declaration, those wishes will be fully honoured in court.
Whilst this is certainly something the court takes into account, the court’s primary concern is whether the will makes adequate provision for eligible dependents. If it does not, the court has the authority to make adjustments, even if the deceased’s intentions were clear.
The aim is to balance testamentary freedom and the deceased’s wishes with ensuring adequate provision for dependents.
Myth 7: Estranged Family Members Cannot Claim
There is a belief that estranged family members have no right to contest a will. While estrangement can affect the outcome it does not automatically disqualify an applicant.
The court considers the nature of the relationship and the reasons for estrangement when assessing an application.
Myth 8: Legal Representation is Unnecessary
Given the complexities involved in FPAs, legal representation is often essential. Many people assume they can handle the process independently, but experienced will and estate lawyers in Queensland can provide valuable guidance, help gather necessary evidence, and present a compelling application.
Lawyers can also help navigate negotiations and settlements, potentially avoiding a lengthy court battle.
Increase Your Chances of a Fair Outcome
There are many myths about FPAs in Queensland that can mislead potential applicants. If you are considering contesting a will, it is important to understand the realities of these claims.
Now that you are aware of the common myths about contesting a will in Queensland, you can make informed decisions and better navigate the legal process to achieve a fair outcome. Always seek professional legal advice to understand your rights and options fully.
Need Assistance?
If you are preparing to contest a will in Queensland, our experienced Wills and Estates Lawyers are here to help. If you believe you have reason to challenge a will, contact us for an obligation free discussion.
Disclaimer:
The information contained in this newsletter is provided for informational purposes only and should not be construed as legal advice on any subject matter. Readers should not act or refrain from acting on the basis of any content included in this newsletter without seeking appropriate legal or other professional advice. The content of this newsletter contains general information and may not reflect current legal developments, verdicts, or settlements. We expressly disclaim all liability in respect to actions taken or not taken based on any or all the contents of this newsletter.
Greenhalgh Pickard’s Wills and Estates Team
