How to contest an Estate in Queensland if there is no Will
What happens when someone dies without a Will?
When a person dies without a Will, they are said to have died ‘intestate’. When this occurs the deceased’s Estate is distributed according to legislation which, in Queensland, is governed by the Succession Act 1981 (‘Succession Act’).
Rules of distribution under intestacy
The Succession Act outlines the order in which eligible people can inherit the Estate and are as follows:
- Any spouse and children
The first distribution under intestacy includes any spouse, which can include husband, wife, ex-husband, ex-wife, and de facto partners and any children including legally adopted children.
The spouse is entitled to $150,000.00, the household chattels, and half of the residuary Estate if only one (1) child survives the intestate or one-third of the residuary Estate if more than one (1) child survives the intestate. If there are multiple spouses, their portion (mentioned above) will be divided equally between them.
If only one (1) child survives the intestate, they are entitled to half of the residuary Estate. If there is more than one (1) child, the remaining two-thirds of the residuary Estate will be divided evenly between all children. Additionally, if any child fails to survive the intestate, then that child’s portion will be distributed equally between their own children (the deceased’s grandchildren).
It is important to note that stepchildren are not classified as children under the Succession Act.
- Parents
If the deceased does not have any spouse, children, or grandchildren, then the rule of intestacy distributes the residuary Estate to the deceased’s parents. If both parents survive the intestate, then they are entitled to the whole of the residuary Estate in equal shares and if only one (1) parent survives, they are entitled to the whole of the residuary Estate.
Additionally, it is important to note that mother-in-law, father-in-law, or stepparents are not classified as next of kin within the Succession Act.
- Brothers and Sisters
If the parents of the deceased pass before the intestate, then the next of kin of an intestate is the brothers and sisters of the deceased who will receive the residuary Estate in equal shares. If any brother or sister fails to survive the intestate but have children (the deceased’s niece/nephew) of their own, that brother or sister’s portion will be distributed equally between their own children.
- Grandparents
If the deceased does not have any surviving brothers, sisters, nieces, or nephews, then the deceased’s residuary Estate will be distributed equally between any surviving grandparent.
- Uncles and Aunts
If the intestate is not survived by any of the above, then the deceased’s residuary Estate will be distributed equally between any surviving uncles and aunts. Similarly, should any uncle or aunt not survive the intestate, their portion will be distributed equally between their children (the deceased’s first cousin).
- The Crown
If there are no survivors, the Estate is said to be bona vacantia and the Crown (meaning the government) is entitled to the whole Estate.
Can an Estate be contested if distribution is decided by the rules of intestacy?
The short answer is yes, it is possible to contest an Estate that falls under intestacy. In Queensland, even if the rules of intestacy are applied, an ‘eligible person’ can bring a family provision claim if they believe they have been left without adequate provision from the Estate.
Who is eligible to contest an Estate?
The Succession Act defines the following as ‘eligible persons’ who can contest an Estate:
- spouse (including ex-husband, ex-wife, and de facto partner);
- children (including stepchildren and legally adopted children); or
- dependant.
If an eligible person makes a family provision claim, then a court will decide whether provisions should be made from the Estate for the proper maintenance and support of the claimant. When deciding on an appropriate amount, consideration is given to the individual’s dependence on the deceased and their individual circumstances.
Example – stepchildren
As an example, under intestacy, stepchildren are omitted from receiving any portion of the residuary Estate which can be seen as receiving inadequate provision. Stepchildren are eligible to make a family provision claim which will allow the courts to assess whether provision should be made from the Estate for the stepchildren who brought a claim.
Example – modest Estates
As another example, under intestacy, the spouse of the deceased is entitled to $150,000.00, the household chattels, and either half or one-third of the residuary Estate. However, if the Estate was relatively modest where the deceased only had a property in their sole name, the spouse who may have been living with the deceased, may have to sell the property and move out. The provision made under intestacy may not allow this spouse to purchase another property, and in turn, it could be deemed that the spouse received inadequate provision from the Estate. For this reason, the spouse is eligible to bring a family provision claim to ensure that adequate provision is left for them.
Has someone close to you passed away intestate? Do you feel that you will be inadequately provided for under the rules of intestacy? You could be eligible to make a family provision claim. We, Affinity Lawyers, offer a free consultation to discuss these matters, so come and arrange a meeting with one of our friendly Wills & Estates solicitors today who can advise you in such an important matter.
