Estate Dispute Expert

In Queensland, a spouse (including a de facto or civil partner), a child (including step and adopted children) and certain dependants may apply to the Court for further provision from an estate. While you may be eligible it does not mean you would be successful in a Family Provision Application.

You must give written notice of your intention to seek further provision from a deceased estate on the executor or administration within 6 months from the deceased's date of death. If the matter is unresolved before the limitation period lapses, formal proceedings must be in District or Supreme Court of Queensland or New South Wales Most claims resolve at mediation rather than trial.

In Queensland, you must give formal notice of an intended Family Provision Application on the executor or administration within 6 months from the deceased's death. If the proceedings remain unresolved, a Family Provision Application must be filed in Court within 9 months from the deceased's death. 

the relationship between the applicant and the deceased person, including factors such as estrangement or disentitling conduct.

There is no fixed formula. Awards range from a modest lump sum to a substantial share of the estate depending on need, the estate's value and the strength of competing claims.

Costs are at the Court's discretion. In many successful claims costs are paid from the estate, but unsuccessful or unreasonable claims can result in a personal costs order.

Act quickly. Notify the executor of your concerns, ask for a copy of the will and the will file, and get advice before a grant of probate is issued.

Common grounds include a lack of testamentary capacity, undue influence, fraud or forgery, a lack of knowledge and approval of the contents, and failure to meet formal signing requirements.

There is no single deadline for a validity challenge, but delay is damaging. Once the estate is distributed, recovering assets becomes far harder, so raise concerns before probate where possible.

Anyone with a genuine interest in the estate — a beneficiary named in the current or an earlier will, or someone who would benefit under the intestacy rules if no valid will exists.

If the challenge was reasonably brought because of the will maker's own conduct, costs may come from the estate. Otherwise, the usual rule that costs follow the event can apply.

Most often family provision applications, but also validity challenges, disputes over gifts and loans made before death, and claims about the executor's own conduct.

The executor named in the will, or the administrator appointed by the Court, is responsible for defending the estate on behalf of all beneficiaries.

Do not distribute the estate. Acknowledge the notice, obtain the estate's asset and liability position, notify beneficiaries and get legal advice on the merits before responding.

To act neutrally and reasonably, preserve estate assets, keep proper records, participate in mediation in good faith and avoid running up unnecessary legal costs.

An executor acting reasonably is usually entitled to be indemnified from the estate. Costs incurred unreasonably or for personal benefit may not be recoverable. An applicant can seek that his/her costs of the application be borne by the personal representative or the estate on an indemnity or standard basis.

Delay in administering the estate, refusal to provide information or accounts, selling or retaining assets against beneficiaries' wishes, and questions about the executor's commission or expenses.

Deadlock over selling property, disagreement about defending or settling a claim, and one executor doing all the work while another refuses to act.

To act in the best interests of the estate and all beneficiaries, administer the estate with reasonable diligence, keep accurate accounts and avoid conflicts between duty and personal interest.

Get advice from a lawyer who practises exclusively in the area who can outline your position and the issues with respect to the administration of the estate. You can request an account of the administration in writing. If concerns continue, the Court can order an executor to account, and in serious cases remove and replace them.

It depends on conduct. Where an executor has caused the dispute, the Court can order that the executor/administrator's costs be paid personally rather than out of the estate. The Court also has the power to make a cost order in favour of the applicant from the executor/administrator or the estate.