Disputes concerning wills and estates are often surrounded by misunderstanding. The process of contesting a will is a complex legal area. It is governed by specific legislation and court interpretations. Many common beliefs about challenging or protecting wills are simply incorrect. These misconceptions can lead to unnecessary conflict and poor decision-making. We are Connor Hunter, will & estate lawyers Brisbane. Our role is to help clients understand the reality of this area of law. This article clarifies ten common mistruths about contesting wills under Queensland law. We also highlight why getting specialist advice from experienced will & estate lawyers Brisbane is so important.
Mistruth 1: A Written or Video Statement Explaining Exclusion Prevents a Challenge
It is often believed that if a will-maker leaves a written letter, video, or audio recording explaining why someone has been excluded from their will, such evidence is sufficient to prevent a claim. In reality, while such material may be considered by the court, it does not prevent an eligible person from filing a family provision application.
The court weighs all relevant evidence, including statements from the deceased, but the statutory right to seek further provision cannot be removed by personal explanation alone. The will-maker’s reasons may influence the outcome, but they cannot automatically bar a claim. At Connor Hunter, will & estate lawyers Brisbane, we ensure clients understand that evidence from the deceased is relevant but not determinative.
Mistruth 2: A “No Contest” Clause Prevents Disputes
Another widespread belief is that inserting a clause into a will stating that any beneficiary who contests it forfeits their inheritance will prevent litigation. In Australia, such clauses are unenforceable. The law provides clear statutory rights for eligible applicants to bring a family provision claim. A “no contest” clause cannot override legislation.
Although such provisions are sometimes effective in other jurisdictions, in Queensland they carry no legal force. They may be included, but they do not stop eligible people from seeking provision. Connor Hunter, will & estate lawyers brisbane, advises clients that statutory rights prevail over such clauses.
Mistruth 3: You Cannot Contest a Will after Probate
It is a mistake to think a will is safe from challenge once probate is granted. This is not true. In Queensland, you can still make a claim as long as you meet strict deadlines. You must provide written notice of your intent within six months of the death. You must then file formal court proceedings within nine months. While probate finalises the executor’s authority, it does not block family provision claims. Acting quickly is essential to protect your rights.
Mistruth 4: A Lifetime Promise Creates an Automatic Claim
Many people believe that if the deceased made a promise during their lifetime that is not reflected in the will, the promise automatically grants entitlement to inheritance. This is not correct. While promises may give rise to equitable estoppel claims, such claims require strict proof.
The applicant must demonstrate that a promise was made, relied upon, and that reliance caused detriment. They must also show it would be unconscionable for the estate to deny the promise. This is a separate and complex legal action, distinct from a family provision claim. Our team at Connor Hunter, will & estate lawyers brisbane, frequently advises on the high evidentiary threshold required for such cases.
Mistruth 5: The Estate Always Pays the Legal Costs
It is commonly assumed that the estate automatically covers legal costs of both applicants and executors in family provision claims. In truth, costs are at the discretion of the court.
Successful applicants may be awarded costs from the estate, but unsuccessful applicants may be ordered to pay their own costs and even the estate’s costs. Executors generally recover reasonable costs from the estate, provided they act properly, but there are exceptions. At Connor Hunter, will & estate lawyers Brisbane, we caution clients against assuming their costs will be covered, stressing the importance of assessing the merits of a claim before proceeding.
Mistruth 6: Poor Conduct by a Child Removes the Right to Contest
Bad behaviour does not automatically disqualify a child from contesting a will. The court may consider this as “disentitling conduct.” Examples include abandonment, abuse, or criminal activity. However, the court uses a high threshold for this. It is just one factor among many. The court might reduce or refuse provision based on conduct, but it is not an automatic bar.
Mistruth 7: The Court Always Divides the Estate Equally among Children
A frequent misconception is that fairness requires equal division of an estate among surviving children. This is not the case. A family provision application is not about equality but about adequacy of provision for proper maintenance and support.
The court evaluates the applicant’s needs, the size of the estate, and the competing claims of others. Equal division may occur, but only if it represents adequate provision in the circumstances. At Connor Hunter, will & estate lawyers Brisbane, we make clear that fairness in this context does not mean equal distribution.
Mistruth 8: Only Biological Children Can Contest a Will
Eligibility to claim extends beyond biological children. Queensland law includes step-children and adopted children as potential applicants. Other dependents who were being financially supported by the deceased may also be eligible. Modern family structures are recognised by the law. This means a wider group of people may have standing to bring a claim.
For further guidance on who may be eligible, see the Legal Services Commission of South Australia’s factsheet: Who Can Contest My Will?.
Mistruth 9: You Must Have Significant Wealth to Contest a Will
You do not need to be wealthy to contest a will. Many law firms offer different fee structures to help clients. These can include deferred payment plans or other arrangements. However, it is crucial to understand the risks. If you are unsuccessful, you could be ordered to pay costs. Getting clear advice on fees and risks at the start is essential. Consulting experienced will & estate lawyers Brisbane ensures you fully understand both opportunities and risks before proceeding.
Mistruth 10: Leaving a Token Gift Prevents a Claim
Some believe that leaving a token sum or minor gift to a potential claimant prevents them from contesting the will. This is not correct. If a person is eligible and can show inadequate provision for their proper maintenance and support, they may still bring a claim, regardless of having received a symbolic gift.
Leaving a small amount does not prevent litigation. Effective estate planning strategies require professional advice. At Connor Hunter, will & estate lawyers Brisbane, we work with clients to structure wills lawfully while minimising the risk of disputes.
Why Misconceptions Persist
These mistruths persist for several reasons. People often rely on outdated information or advice from non-lawyers. Sometimes, concepts from other countries are mistakenly applied to Australian law. Queensland succession law is very specific. You need accurate advice from an experienced practitioner.
The Role of Connor Hunter
At Connor Hunter, will & estate lawyers Brisbane, we specialise in this area. Our team assists clients with estate litigation, dispute resolution, and family provision claims. We help people challenge wills and defend estates. We provide clear advice to correct misconceptions. Our goal is to empower clients to make informed decisions and protect their rights.
Conclusion
Contesting a will is governed by strict rules and judicial discretion. Widespread beliefs about written statements, “no contest” clauses, and token gifts are often wrong. Each case is decided on its own unique facts. The court balances the needs of applicants, the size of the estate, and the relationships involved. Understanding the truth behind these mistruths is vital for anyone making a will or involved in a dispute. We provide comprehensive advice and strong representation. At Connor Hunter, will & estate lawyers Brisbane, we ensure our clients are fully supported throughout the entire process.
