How to contest a will in Queensland
In Queensland, you contest a will by bringing a family provision application in the Supreme Court of Queensland under Part 4 of the Succession Act 1981 (Qld). You must give notice within 6 months of the date of death and commence proceedings within 9 months.
The framework
Family provision in Queensland is governed by Part 4 (sections 40-44) of the Succession Act 1981 (Qld). Applications are made to the Supreme Court of Queensland under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
The process
Confirm eligibility under section 41
Section 41 of the Succession Act 1981 (Qld) allows a spouse, child (including stepchild and adopted child), or dependant to apply. "Dependant" is defined in section 40 and includes certain parents and minor children being wholly or substantially maintained.
Note the time limits
Notice of intention to claim must be given to the executor within 6 months of death. Proceedings must be commenced within 9 months of death, unless the court extends time under section 41(8).
Give written notice to the executor
Send written notice of your intended claim to the executor. This protects the executor from personal liability if they distribute the estate before the 9-month limit expires.
Obtain estate documents
Request a copy of the will, grant of probate, and inventory of assets from the executor or via the Supreme Court probate registry.
Assess financial circumstances and need
Prepare a detailed statement of your financial position, needs, contributions to the deceased, and the nature of the relationship. These are factors the court considers when assessing proper maintenance and support.
Obtain legal advice
Family provision applications are fact-specific. Obtain advice from a Queensland succession lawyer on your prospects, the estate size, and potential cost consequences before filing.
File an Originating Application
Commence proceedings by filing an Originating Application and supporting affidavit in the Supreme Court of Queensland under Chapter 2 of the UCPR 1999 (Qld).
Serve the executor
Serve the Originating Application and affidavit on the executor, who defends on behalf of the estate. The executor files an affidavit listing the estate assets and liabilities.
Attend mediation
The Supreme Court of Queensland routinely orders mediation in family provision matters. Most applications resolve at mediation rather than final hearing.
Final hearing and orders
If unresolved, the matter proceeds to trial. The court determines whether adequate provision has been made for proper maintenance and support and, if not, makes an order. Costs are discretionary and adverse costs are possible.
Common mistakes
- Missing the 9-month time limit under section 41(8)
- Not giving the 6-month notice to the executor
- Applying without being an eligible person under section 41
- Not addressing financial need and contribution in the affidavit
- Underestimating cost risk
Get this process right with Quillio
Quillio can help prepare your affidavit addressing proper maintenance and support under section 41, and summarise estate assets and liabilities. See /practice-areas/wills-estates or start a free trial.
This guide is general information, not legal advice. Family provision matters carry cost risk. Obtain specialist succession law advice before proceeding.
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