In Queensland, if a person has been left without ‘adequate provision’ from a deceased estate, they can contest the Will if they are an eligible person. This is usually referred to as a ‘Family Provision Application’ and it is at the heart of succession law due to the freedom of attestation. This freedom, however, is subject to a moral obligation to provide for ones immediately family and dependants.
Our team at Richard Hoare & Co have been practicing in Wills and Estates Law since 1983. We are here to guide you through the process to the best possible outcome.
If you are considering contesting a Will, or if you have a question, we encourage you to call us on 07 3209 7000 for a free initial case assessment.
You should be aware though that every State and Territory in Australia has different rules which apply. There are also different time limits and eligibility even different depending on where the deceased died.
We know that costs are often a factor, so you should have comfort knowing that almost all of our work with contesting estates is on a “no win, no fee” basis.
GROUND FOR CONTESTING
In Queensland you have grounds to contest a Will if:
you are an eligible person
you believe that you have been left without ‘adequate provision’ for your proper maintenance and support out of the estate of the deceased.
The courts generally consider a range of factors, including:
the financial position of the beneficiaries (and any other claimants);
the nature and extent of your relationship with the deceased;
any support provided to you by the deceased during his or her life;
any statements or promises made by the deceased to you about how he or she would divide their estate when they pass;
your standard of living;
contribution you may have made to the extent of the deceased's estate;
any other matter that the court may deem relevant in their discretion.
It is very difficult to define this idea of ‘adequate provision’ and it varies from each case that comes before us.
This underlying notion, however, is all about the moral obligation of the testator.
In Bosch v Perpetual Trustee Co (Ltd) (1983) it was said that the legislation was designed to enforce the moral obligation of the testator to use his or her testamentary powers for making proper and adequate provision for the support of a person, having regard to the means and deserts of several claimants and the urgency of the various moral claims upon his or her bounty. Their Lordships in that case made it clear that the court must place itself in the position of the testator and consider what he or she ought to have done to treat them as a wise and just person rather than fond and foolish.
Over time, however, there were differing views about this idea of moral duty.
In Permanent Trustee Co Ltd v Fraser (1995) for example, the president of the Court of Appeal went on to suggest that the courts should not longer use a sense of moral duty. Whereas, Chief Justice Gleeson of the High Court of Australia in 2005 went on to suggest the moral duty test is a good test. He indicated that statute should be read as to when this idea of moral duty should be applied. Justices Callinan and Heydon went on to also indicate that they found it convenience and generally useful to utilise the concept and they have not been wrong to do so. Justices Gummow and Hayne, however, in that case indicated there was no role for the concept.
Perhaps famously it was put quite well in the approach taken by the High Court in the case of Worladge v Doddridge, where Williams and Fullagar JJ approved the following statement of the South Australian Supreme Court:
Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door — it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the backyard — it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail.
WHO IS AN ELIGIBLE PERSON?
As eluded to earlier, in order to contest a Will in Queensland, section 41 of the Succession Act 1981 (Qld) requires a person to fall within one or more of the following categories of eligible persons:
the deceased’s spouse; and / or
the deceased’s child (including step-child); and / or
the deceased’s dependant.
The terms "spouse", "child" and "dependant" are defined in the Succession Act 1981 (Qld). Here is some more information on this:
In Queensland, a spouse may be:
the deceased’s husband or wife; or
the deceased’s de facto partner; or
the deceased’s registered partner (pursuant to the Relationships Act 2011); or
the deceased’s former husband, wife or registered partner.
In Queensland, a child may be:
the deceased’s biological child; or
the deceased’s unborn child; or
the deceased’s lawfully adopted child; or
the deceased’s stepchild.
In Queensland, a dependent may be:
the deceased’s parent;