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Making your Will: 8 things you need to know – Part 8

We have now reached the end of our 8 part series on making your Will. In the final part of our series we consider the circumstances when your Will may be able to be contested by way of a family provision application.

Your Will can be contested in certain circumstances

In certain circumstances if you have excluded someone from your Will or not made sufficient provision for someone in your Will, your Will may be able to be contested by way of a family provision application.

In Queensland a family provision application can only be made a spouse, child or dependent. The terms spouse, child and dependant are defined by the law and defined quite broadly. For example, the term spouse includes a husband, wife, defacto partner, registered partner, former husband, former wife and former registered partner while the term child includes a biological child, unborn child, legally adopted child and step child.

A Court can take various matters into consideration in determining whether the terms of a Will should be varied so that provision is made for a person making a family provision application.

These considerations include, but are not limited to

  1. The financial position of the person contesting the Will;
  2. Whether any other person is liable to support the person contesting the Will;
  3. The  health of the person contesting the Will;
  4. The size and nature of your estate;
  5. The strength of any competing claims to your estate;
  6. The relationship between you and the person contesting the Will;
  7. Any contribution made by the person contesting the Will to your estate;
  8. Any conduct by the person contesting the Will which might disentitle them to an order for provision; and
  9. Any other matter which the court considers relevant.

There are various ways to minimise the risk of someone contesting your Will by making a family provision application and it is best if you obtain legal advice if you are considering excluding a spouse, child or dependent from your Will.

We hope that our 8 part series has helped you gain a better understanding of the matters you should consider when making your Will.

This information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.