Disputes where there is no Will

Disputes where there is no Will

Many adults unfortunately die without a Will.

If someone dies without a Will, the court can grant ‘letters of administration’ to certain family members giving them authority to deal with the deceased’s affairs and distribute the deceased's assets. In Queensland, the following family members can apply to the court for letters of administration (listed in order of priority): a surviving spouse, children, grandchildren or great-grandchildren, parents, siblings, nieces and nephews, grandparents, aunts and uncles and first cousins.

Disputes often arise as to who is entitled to apply for letters of administration and/or who is the most appropriate person to be in charge of the estate. For example, a deceased person may be survived by a de facto spouse who is not recognised or accepted by the deceased's surviving children from a previous marriage. Alternatively, in those circumstances, the spouse or children may be able to file a ‘caveat’ in the court to prevent anyone obtaining a grant without them having the opportunity to have their say in court. Once a caveat and appropriate supporting documentation is lodged, a grant can only be issued by way of agreement between the parties (whereby the caveat is withdrawn) or via an order of the Court.

If someone dies without a Will, their estate must be distributed according to the ‘laws of intestacy’. These are very strict rules that stipulate who will receive the person’s assets and in what proportions.

If the distribution to a deceased’s spouse, children or certain dependents under these rules of intestacy does not provide enough for their current or future needs, they are entitled to bring a family provision application to request a larger share of the estate. There are many factors that are relevant for the court to consider in any family provision applications, including the size of the estate, the financial position of the person making the claim and that person’s relationship with the deceased person.

It is important to be aware that persons eligible to make a family provision claim will find differences in the court's considerations with variances from State to State. There are also very strict time limits that apply.

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 disputes or issues where there isn't a Will, including contesting the estate, please contact our friendly Estate Litigation Team on +61 7 3001 2999 for a free, no obligation appraisal.