Your estate is being contested: an executor's guide in Queensland

The two different kinds of challenge

A family provision claim does not say the will is invalid — it asks the court to alter the distribution because adequate provision was not made for an eligible applicant. A validity challenge is different: it says the will should not stand at all, on grounds such as lack of capacity, undue influence, lack of knowledge and approval, or improper execution. The procedure, evidence and time limits differ.

The dates an executor must diarise

In Queensland a person intending to make a family provision application must give the executor written notice within nine months of the death, and the application must be filed within nine months unless the court extends time. An executor who waits at least six months from death, and who has no notice of a claim, is in a much safer position when distributing.

• Six months from death — the earliest point at which distribution is generally prudent
• Nine months from death — notice of an intended claim, and filing of the application
• Published notice of intention to distribute — an additional protection where properly given
• Any extension of time the court grants where the estate is undistributed

Do not distribute while a claim is on foot

The single biggest risk for an executor is distributing the estate after receiving notice of a claim. An executor who does so can be personally liable to make good the provision the court later orders. Hold the assets, tell the beneficiaries why, and get advice before releasing anything — including partial interim distributions.

What the court weighs up

In a family provision claim the court looks at the applicant's financial position and needs, the size and nature of the estate, the relationship and any estrangement, contributions the applicant made to the deceased's assets or care, competing claims of other beneficiaries, and any disentitling conduct. Moral judgments about who deserves what are less important than demonstrated need and the estate's capacity to meet it.

Mediation, costs and timeframes

Most Queensland family provision matters are referred to mediation and most settle there, often within six to twelve months. Costs are not automatic: the old assumption that the estate pays everyone's costs no longer holds, and an unsuccessful applicant can be ordered to pay. Modest estates are especially vulnerable, because two sets of legal costs can consume what is being fought over.

An executor's proper role is neutral — put the relevant evidence before the court, represent the estate's interests, and let the beneficiaries who oppose the claim run their own case if they wish.

If you are the person making the claim

Eligibility in Queensland extends to a spouse (including a de facto or former spouse in defined circumstances), a child (including adult, adopted and step-children in defined circumstances), and a dependant. The nine-month deadline is short, and evidence of need — income, assets, liabilities, health and dependants — is what actually moves the outcome. Get advice early rather than after the estate is distributed.

Frequently asked questions