Let’s face it—dealing with legal matters after someone passes away is difficult enough without added family tensions or disputes over a Will.
Unfortunately, these conflicts are more common than many people realise. At W & G Lawyers, we frequently see situations such as siblings falling out over inheritances, unexpected Wills excluding family members, or estates delayed for years due to an inactive executor.
Whether you’re an executor, a potential beneficiary, or planning your own estate, it’s essential to understand how succession law litigation works. Here are some key issues and practical insights—explained in plain English.
Probate vs Letters of Administration: What’s the Difference?
When someone dies, their estate must be managed and distributed legally. If they left a valid Will, the executor applies for probate—a court-issued document confirming their authority to act.
If there’s no Will, or the named executor is unavailable, someone (often the next of kin) must apply for Letters of Administration. The process is similar but arises in the absence of a valid Will.
Step 1: Is the Estate Solvent?
Before distributing assets, it’s crucial to assess whether the estate can cover its debts. Solvency isn’t just about paper value—it’s about whether debts can be paid as they fall due.
Tip: Funeral and administration costs have top priority, even if the estate is otherwise insolvent (see Section 57 of the Succession Act 1981 (QLD)).
Bankruptcy Surprise? Do Your Homework
A common (and costly) trap: paying a bankrupt beneficiary. If a beneficiary is bankrupt, any inheritance they receive belongs to their trustee in bankruptcy, not them.
Always conduct a bankruptcy search before distributing funds. A statutory declaration alone may not protect you if it turns out to be false.
Note: Bankruptcy doesn’t disqualify someone from receiving an inheritance—it simply redirects the money to creditors.
Who Can Claim More from the Estate? (Family Provision Claims)
Even if a Will exists, certain people can apply to the court for a greater share of the estate. Eligible claimants often include:
- Spouses or de facto partners (including same-sex partners),
- Children (biological, adopted, or stepchildren),
- Dependents (under strict legal criteria).
This right has existed in Queensland since 1914 to ensure dependents aren’t left destitute following a death.
How Does the Court Decide These Claims?
The court applies a two-stage test established in Singer v Berghouse:
Stage 1: Jurisdiction and Need
The court considers factors such as:
- The applicant’s financial circumstances,
- The size of the estate,
- The nature of the relationship with the deceased,
- Any contributions made by the applicant to the deceased’s welfare or wealth.
Stage 2: What’s Adequate and Proper?
The court then uses its discretion to determine a fair provision. These decisions are difficult to appeal—making early legal advice essential.
Can You Challenge a Will’s Validity?
Yes, but only on specific grounds, including:
- Improper execution (e.g. not properly witnessed),
- Lack of testamentary capacity (based on the Banks v Goodfellow test).
Strong evidence is crucial—medical records, witness statements, and even financial activity may help establish or refute capacity.
Wording Issues? Construction and Rectification
Sometimes, it’s not the Will’s existence but its clarity that causes trouble. Courts can:
- Construct the Will’s meaning using context (the “armchair principle”),
- Rectify a Will where a clear drafting error has failed to reflect the deceased’s true intentions.
Tip: Avoid specific gifts that may no longer exist. Percentages and categories often reduce future disputes.
Trouble with the Executor? Here’s What Can Be Done
Executors have legal duties—but what if they don’t fulfil them? Courts may remove an executor if:
- They have a conflict of interest,
- They refuse or fail to act,
- The estate involves minor children.
Evidence of mismanagement or delay is critical—keep records and correspondence from the outset.
Estate Planning Tip: Consider Bankruptcy Risks
If a potential beneficiary is at risk of bankruptcy, consider using a testamentary trust or excluding them entirely. Bankruptcy generally lasts three years but can extend longer if obligations aren’t met.
If the person dies during bankruptcy, the creditors—not their loved ones—receive the inheritance.
Final Thoughts
Succession law can be both emotional and complex. Whether you’re managing a deceased estate or thinking ahead with your own planning, clear legal guidance helps protect your interests and avoid costly disputes.
At W & G Lawyers, we assist clients across all areas of estate litigation and estate planning. If you’re involved in a Will dispute or have concerns about potential claims or challenges, we welcome you to contact our team to make enquiries and obtain independent legal advice tailored to your situation.
🔗 External Links & References
📘 Queensland Legislation
⚖️ Court Cases
- Singer v Berghouse (1994) 181 CLR 201 – High Court case outlining the two-stage test for family provision claims.
- Banks v Goodfellow (1870) LR 5 QB 549 – Historic English case still used in Australian law to test testamentary capacity.
- Sydney University Press Law Books – CHAPTER 4 – Capacity to make a will
🧾 Supreme Court of Queensland – Probate Information
🧑⚖️ Queensland Law Society – Succession Law
📚 Legal Aid Queensland – Contesting a Will
📄 Australian Financial Security Authority (AFSA) – Bankruptcy Search and more
Disclaimer:
This publication is for general information only and does not constitute legal advice. You should not rely on it as a substitute for obtaining legal advice specific to your circumstances. For personalised guidance, please contact W & G Lawyers.