Estate Litigation in Queensland – What is it?

Have you recently lost a loved one and, due to issues with their will or estate, are currently considering or involved in estate litigation?

If so, this is likely an extremely stressful and difficult time for you as, on top of the grief, court-related anxiety has probably also become an issue for you.

If this is the case for you, it can be a really trying time for yourself and your loved ones and there’s a chance that you don’t know how to proceed with litigation.

It is, however, important for court action to take place if you believe that the wishes of the recently deceased are not being correctly seen to or that the situation is unjust in any way.

This is why it is important that you have some background knowledge when entering the situation and can correctly and effectively engage in estate litigation for the wishes of the deceased.

In this article our estate litigation lawyers will discuss the meaning of estate litigation, what it means for you, and why it is so important that, as someone who believes a loved one’s wishes are not being followed after their death, you are educated on the matter.

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What is Estate Litigation?

The first question that anyone (that doesn’t already know, of course) is asking themselves when they hear the term ‘estate litigation’ is regarding what it means.

The term ‘estate litigation’ refers to the process of disputing the manner in which the belongings and assets of someone who has died are distributed and managed.

In many cases, estate litigation involves the interpretation of one’s Will, an official document that is created by some prior to their death to discuss the distribution of their possessions, and whether or not said will was executed properly and justly.

This usually entails validating or disproving whether the deceased’s will is valid and is followed properly.

Litigation involves a civil court matter in which two or more parties present their case to a judge or magistrate, depending on the nature of the matter, who will decide if the estate is being dealt with as it should.

Estate litigation can be quite complicated and complex, so it is important that you have a clear understanding of what it entails before you involve yourself in such a process.

Can I Challenge a Will?

Another question that you may be asking yourself regarding the process of estate litigation is if you are a valid person to make a claim regarding the estate of the deceased.

This may be news to you, but not everyone can make a claim regarding the estate of a deceased person; there are only select individuals who may do so.

You must have proof of what is referred to in Queensland as ‘interest in the estate’.

This may be you in several circumstances, including:

The individual is named as a beneficiary in the will of the deceased;
The individual has been named as a beneficiary in a prior but no longer in use will;
The individual would naturally be a recipient of part of the deceased person’s estate if they had not created a will before their death.

Estate Litigation – What Should I Consider?

Another important factor that you may be questioning as someone that is considering being or is currently involved in estate litigation is what else you should be taking into account.

This is a very important part of the litigation process as several possible outcomes and things can and will go wrong if you do not take the time to take them into account.

Some of these things may include, but are absolutely not limited to:

Time Limitations: The first consideration you should make before you take any sort of action regarding estate litigation is if you are still within the appropriate time constraints to litigate a deceased person’s estate. In Queensland, you will only have 6 months to write a notice to the executor of a will if you wish to contest it, for example. Whatever you wish to dispute, there will likely be a state-wide regulation on how long you have to do so, so take this into account.
Costs: Another key consideration that you should be taking into account are the costs of undergoing such a process. If there is one word that you couldn’t use to describe litigation, it’s cheap! Litigation is always accompanied by steep legal fees that you may or may not have to pay, depending heavily on the circumstances of the matter, so considering if it is the right thing for you is vital.
ADR methods: Another consideration that you may wish to make regarding estate litigation is if using an alternative dispute resolution method, or an ADR method, is a better option for you. Alternative dispute resolution techniques exist so that people involved in a dispute have options to pursue the resolution of their matter outside of court. This can be much more time and cost-efficient for you and may help to maintain relationships with family members or other people you know involved in the matter better than litigation may.

What are the Claims I Can Make?

Another key factor in estate litigation is the several options for claims that you have as a potential beneficiary, which will vary depending on the nature of your matter.

A family provision claim is the first and most common form of claim in estate litigation.

It describes the process of a family member or beneficiary of the deceased presenting their case to the court as someone who did not receive their fair share or any of the deceased’s estate and believes that this is unjust and an unreliable form of the will of the individual who passed away.

If the individual who died owed someone a moral or otherwise responsibility but failed to include them in their final will, they may make a claim.

Another claim that one may make is a capacity claim, which denies that the deceased was in their right mind or had the mental capacity to submit a will at the time that they or wrote it.

Estate Litigation Key Takeaways

Dealing with a legal matter when grieving a deceased loved one can be a difficult task.

There is so much that you need to balance and control in this situation, and a lot of unknown factors to consider.

It may be wise, in this circumstance, to hire the professional help of a lawyer to help to guide you through the process of estate litigation.

A lawyer will advise you on how you should proceed and represent you in any legal proceedings that may occur, giving you the peace of mind that your matter is being handled properly.