A Daily Review of Contested Wills

Which court in Queensland to commence proceedings for contesting a will.

The District Court of Queensland Act 1967 states 68(1)(b)(x) that the Court has jurisdiction to hear and determine family provision applications pursuant to sections 40 to 43 of the Succession Act 1981, however the provision resulting for any order made by the District Court is not to exceed in amount or value the monetary limit. The monetary value is currently $750,000.00. In other words, if you believe that you will not receive provision more than $750,000.00 you must file in the District Court. If you consider your claim to be worth more than $750,000.00 the Supreme Court is the correct court to commence proceedings in.

Time to contest a will in NSW.

NSW: 12 months from date of death.Section 36 of the Interpretation Act 1987 states that the date on any given day shall be calculated exclusive of that day i.e. Date of death 10 March 2012, due date 11 March 2013. In general, a month usually means a calendar month, where the first day is excluded. For example if a grant were issued on 15 July, the first day of a 6 month period would be 16 January. If the last day falls on a non business day, the relevant Act usually provides for an extension to the first business day following.

Time to contest a will in Queensland.

QLD: Nine months from date of death. Section 38 of the Acts Interpretation Act 1954 states that the period of one month is to be calculated by excluding the day and if the period is expressed to be a specified number, by excluding the day on which the purpose is to be fulfilled i.e. Date of death 20 Oct 2010, due date is therefore 20 July 2011.

Time to contest a will in Victoria

VIC: Six months from date of grant of administration. Section 44 (6) b of the Interpretation of Legislation Act 1984 interprets the reference to a “month” as a reference to a “calendar month”. Which means that the time is calculated from a day of one month to the corresponding day of the next month if such exists or if not to the last day of the next month. i.e. from Jan 3 to Feb 3 or from Jan 31 to Feb 29.

Time in which to contest a will.

Every Australian jurisdiction imposes a time limit in which to make a family provision claim. Generally time commences from the date of death in QLD and NSW and from the date of grant of representation in the remaining jurisdictions.

Can I contest a will if I have been estranged from the deceased for a long period of time?

Yes, so long as you are eligible under section 57 of the Succession Act 2006, however all facts of your case must be taken into consideration. In Kay v Archbold [2008] NSWSC 254 White J stated that estrangement is certainly a factor which must be taken into consideration when determining what provision should be made however every case is different and should be looked at individually. White J held that there is no rule, irrespective of a claimant’s need, size of the estate, and the existence or absence of other claims on the estate that a claimant is not entitled to ‘ample’ provision if they have been estranged from the deceased person.

I am a grandchild of the deceased person. Am I eligible to make a claim on my grandparent’s estate?

There are three steps that are necessary for the Court to consider when determining whether a grandchild is entitled to provision out of their grandparent’s estate. As Hallen AsJ stated in Sammut v Kleemann [2012] NSWSC 1030, the Court is to: (i) determine whether the applicant is an eligible person within the meaning of that term in s 57(1) of the Succession Act 2006 (“the Act”); (ii) determine in the case, relevantly, of a s 57(1)(e) applicant, whether the Court is satisfied that there are factors which warrant the making of the application within s 59(1)(b) of the Act; and, if both eligibility and factors warranting are established; (iii) determine whether the applicant has been left with inadequate provision for his, or her, proper maintenance, education and advancement in life; and, if so, what, if any, provision (or further provision) ought to be made out of the estate for those purposes? To be eligible under section 57 of the Act you must have at some stage throughout your life been wholly or partly dependant on the deceased. You must then prove why your grandparent should have left you provision out of their estate.