Challenging a Will

Challenging a Will

Where the contents of a Will or the validity of a Will is in question, Bennett & Philp Lawyers can assist in both challenging and resolving any estate issues.

There are two types of Will challenges: a challenge to the contents of a Will and a challenge to the validity of the Will. If you wish to dispute a Will, it is important to identify the correct type of challenge.

Challenging the contents of a Will

Challenges to the contents of a Will are known as ‘family provision applications’ or ‘FPAs’. An FPA is made when someone is left out of a Will or the gift to them in a Will is not sufficient to meet their needs.

Not everyone is eligible to make an FPA. In Queensland, only a person’s spouse (including de facto), children (including step and adopted children) and some dependents can make a claim for further provisions to be given to them.

If someone makes a claim, there are many factors that are relevant for the court to consider. These include the size of the estate, the financial position of the person making the claim and that person’s relationship with the deceased person.

In Australia, those eligible to file an FPA, and the considerations taken into account by the court differ in each State. There are also very strict time limits that apply when making an FPA. Therefore, it is very important to get expert legal advice as early as possible, otherwise one’s rights against the estate may be lost.

Challenging the validity of a Will

The court might decide that a Will is invalid for many reasons.

A Will might be invalid if the person who made it did not have the necessary legal and mental capacity to do so. For example, if a Will is made by a person with advanced dementia.

A Will might also be invalid if the person who apparently made it did not know or approve of the contents.  For example, if they were coerced or influenced into making their Will in a certain way or if the Will was forged.

If a Will is invalid, the court may decide to set it aside.

We are pleased to be able to offer a range of fee options for clients (depending on their circumstances) as we appreciate different arrangements suit different people. These options include "deferred" payment of fees and speculative (no win no fee) arrangements.

If you need advice about challenging a Will, please contact our friendly will dispute team on +61 7 3001 2999 for your free no obligation 45 minute appraisal.