When a loved one passes away, the legalities of their estate can often add a layer of stress to an already emotional time. On the Fraser Coast, we frequently see clients who know something “isn’t right” with a Will but aren’t sure which legal path to take. While the terms are often used interchangeably in casual conversation, challenging a Will and contesting a Will are two distinct legal actions in Queensland.
At Geldard Sherrington Lawyers, on the Fraser Coast. We believe clarity is the first step toward resolution. Here is the breakdown of what these terms mean for you and your family.
Challenging a Will: Attacking the Validity
Challenging a Will is about the document itself. You are essentially arguing that the Will is legally invalid and should be “set aside” by the court. If a challenge is successful, the court may revert to a previous Will or apply the laws of intestacy.
Common grounds for challenging include:
- Lack of Testamentary Capacity: The deceased did not understand the nature or effect of the document (often due to dementia or illness).
- Undue Influence: The deceased was coerced or pressured into signing the Will against their true wishes.
- Fraud or Forgery: The signature is fake, or the document was tampered with.
- Knowledge and Approval: The deceased didn’t fully understand or approve the contents of the Will at the time of signing.
Contesting a Will: Seeking a Fairer Share
Contesting a Will, formally known as a Family Provision Application (FPA), does not necessarily mean the Will is “bad” or “invalid.” Instead, you are arguing that the distribution of the assets is unfair and that the deceased failed to make “adequate provision” for your proper maintenance and support.
Under the Succession Act 1981 (Qld), only certain “eligible persons” can contest a Will, including:
- Spouses (including de facto and sometimes former spouses).
- Children (including step-children and adopted children).
- Certain dependants.
The court looks at your financial need, your relationship with the deceased, and the size of the estate to determine if you deserve a larger portion of the inheritance.
Why the Distinction Matters
The distinction is vital because the evidence required and the time limits differ. In Queensland, you generally have six months from the date of death to notify the executor of your intention to contest, and nine months to file the application.
Navigating estate disputes requires a delicate balance of legal smarts and empathy. If you feel unfairly left out or suspect someone coerced the signing of a Will, the team at Geldard Sherrington Lawyers provides expert, local advice tailored to the Fraser Coast community.
Want to know more? Email or call us on 07 4194 5422 to book a consultation. View our services online.