- (07) 5506 9800
- office@hqf.com.au
- 2/82 Marine Parade, Coolangatta, 4225, QLD
- PO Box 327, Coolangatta
WILLS AND ESTATES
Share this article
You have seen the will. Something does not sit right, whether you were left out entirely, received far less than you expected, or suspect the document is simply not what your loved one truly wanted. Whatever brought you here, understanding your rights when contesting a will in Queensland starts with one critical distinction: are you challenging the validity of the will, or are you seeking better provision from an estate you accept as valid? These are two separate legal processes, with different grounds, different timeframes, and different outcomes.
This guide walks you through both pathways, clearly, honestly, and without the vague reassurances that serve no one.
Challenging validity means arguing that the will itself should not stand, that the document does not represent the free, informed wishes of the person who signed it. If successful, the court sets aside the will. The estate then passes either under an earlier valid will or, if none exists, under the intestacy rules.
Contesting via a Family Provision Application (FPA) means accepting the will as valid but arguing that it fails to make adequate provision for your proper maintenance and support. If successful, the court does not set aside the will, it carves out an additional provision for you from the estate.
Most disputes in Queensland fall into the second category. The grounds and timeframes for each pathway differ significantly.
For a will to be valid, the testator must meet the legal test for testamentary capacity at the time of signing. That test, established in Banks v Goodfellow (1870) and applied throughout Australia, requires the testator to understand: the nature and effect of making a will, the extent of their property, the claims of those who might reasonably expect to benefit, and that they direct the distribution of their estate free from any disorder of the mind.
Dementia, severe depression, psychotic illness, or the effects of medication or alcohol can all impair testamentary capacity. A diagnosis alone does not prove incapacity, the assessment turns on the testator’s actual state of mind at the moment of signing. Medical records, contemporaneous notes, and evidence from those present at execution are critical.
Undue influence arises where someone coerces or manipulates the testator into making a will that does not reflect their genuine wishes, not merely persuasion or legitimate appeal to the testator’s affections, but pressure that overpowers the testator’s free will. Courts treat undue influence seriously but require strong evidence: suspicious circumstances alone rarely suffice.
Common indicators include sudden changes to long-standing arrangements shortly before death, isolation of the testator from family, the person who benefits also being heavily involved in organising the signing, and the testator being vulnerable through illness or dependence.
A will procured by fraud, for example, where someone misrepresents facts to the testator to influence the will’s content, or a forged will is invalid. Fraud and forgery are serious allegations requiring clear evidence. Handwriting analysis, witness evidence, and document examination by experts all play a role.
The law presumes that a testator who had capacity and signed a will knew and approved of its contents. But that presumption weakens where the circumstances of execution are suspicious. Where someone else prepared the will and takes a significant benefit under it, a classic suspicious circumstances scenario, the court requires affirmative proof that the testator understood and intended the document they signed.
Under the Succession Act 1981 (Qld), a will must be in writing, signed by the testator (or someone directed by the testator in their presence), and witnessed by two persons present at the same time who also sign in the testator’s presence. A will that does not comply with these requirements is prima facie invalid.
However, section 18 of the Succession Act 1981 (Qld) gives the court a dispensing power, it can admit an informal document as a valid will if satisfied the document embodies the testamentary intentions of the deceased, even where formalities are not met. Courts have admitted handwritten notes, text messages, and unsent emails as informal wills under section 18. The test is whether the document represents the final, settled intention of the testator to dispose of their estate after death.
Under Part 4 of the Succession Act 1981 (Qld), the following persons may apply for a family provision order:
Being an eligible person gives you standing to bring the application — it does not guarantee success. The court must also be satisfied that the will (or intestacy) fails to make adequate provision for your proper maintenance and support.
Queensland’s eligible class is narrower than NSW — in particular, grandchildren and members of the same household do not have independent standing to apply in Queensland unless they qualify as dependants.
The court exercises a broad discretion, taking into account:
The court does not simply ask whether the applicant needs money, it asks whether the deceased had a moral obligation to make provision and failed to do so.
For a Family Provision Application in Queensland:
For a validity challenge, there is no fixed statutory deadline, but delay creates practical problems: evidence deteriorates, witnesses forget, and a court may be less willing to grant relief if the estate has distributed. Act promptly regardless of which pathway applies to you.
Most Queensland estate litigation settles before trial, often at mediation. The typical pathway after filing is:
If your claim succeeds, the court typically orders your costs from the estate. If you proceed to a contested hearing and lose, you risk an adverse costs order, paying both your own and the estate’s legal costs. This is not a decision to take without understanding the costs implications fully. See our companion post on estate litigation costs.
Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice. Readers should seek legal advice about their specific circumstances.
Share this article
Please describe your enquiry below
Yes, adult children have standing to make a family provision application in Queensland even if the testator deliberately excluded them. The court does not simply enforce the testator’s wishes; it asks whether the failure to provide was a breach of the testator’s moral duty. Deliberate exclusion does not end the inquiry, but it is a factor the court weighs, particularly if the testator left written reasons.
A testator’s reasons for excluding someone carry weight but do not bind the court. If the reasons are based on misapprehension or factual error, the court gives them less weight. If the reasons reflect a genuine and rational assessment of the applicant’s circumstances and conduct, they can be determinative.
Yes, provided the de facto relationship meets the legal definition: a genuine domestic relationship of at least two years, or a relationship with a child, or a registered relationship. The length and nature of the relationship are relevant both to eligibility and to the quantum of any provision ordered. Same-sex de facto partners have the same rights as opposite-sex partners under Queensland law.
A small estate does not prevent you from applying, but it significantly affects the economics of the claim. Legal costs in estate litigation are real and substantial, on both sides. Before committing to litigation over a modest estate, get an honest assessment from your solicitor of what a successful outcome actually looks like after costs.