Disputes where there is no Will

Many adults die without a Will. This often leads to disputes amongst their family about who will manage their affairs and how they will be managed.

If someone dies without a Will, the Court can grant ‘letters of administration’ to certain family members giving them authority to deal with the person’s affairs. 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 appointed. 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. In those circumstances, the spouse or children may be able to file a ‘probate caveat’ in the Court to prevent the other party from obtaining a grant without their knowledge. 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documentation is lodged, a grant can only be issued by way of agreement between the parties (whereby the caveat is withdrawn) or via an order of the Court.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 person’s spouse, children or certain dependents under the 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 if they do bring a claim, including the size of the estate, the financial position of the person making the claim and that person’s relationship with the deceased’s person.

It is important to be aware that who is eligible to make a family provision claim and the relevant considerations for the Court are different in each State. There are also very strict time limits that apply.

If you need advice about applying for letters of administration or challenging a Will, please contact our friendly Estate Litigation Team on +61 7 3001 2999 for a free, no obligation appraisal.