Contesting A Will?

We have been recognised by the influential Doyles Guide as:

  • 2020 Leading – Wills, Estates & Succession Planning Law Firms – Queensland (One of the First Tier firms in Estate Planning)
  • 2020 Leading – Wills & Estates Litigation Lawyers – Queensland 
  • 2019 Leading – Wills & Estates Litigation – Queensland
  • 2019 Leading – Wills, Estates & Succession Planning Lawyers – Queensland

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We can help!

  • Contesting or Challenging a Will

  • Family Provision Claims

  • Financial Elder Abuse

  • Issues with Executors

  • Left out of a Will

  • Superannuation Claims

  • Will Disputes

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How We Can Help You

Contesting a Will

You may wish to contest a Will because you’ve been left out of the Will, the Will is missing or unclear, or if you suspect the Will-maker was coerced or lacked capacity to make a Will.

Executor Disputes

Executors have certain responsibilities and obligations to administer the estate faithfully. Sometimes the reality is that the executor is not administering the estate in the way the executor ought..

Family Provision Claims

Family provision claims arise where a will maker doesn’t make adequate provision in his or her will for family members. If you have been left out of a Will, you need to contact a solicitor immediately…

Claims on Super

Your will cannot dictate what happens to your superannuation when you die. While nomination forms exist to take care of this problem, they are usually inadequate and fail to address more complex asset structures.

Elder Law

Financial elder abuse is becoming more common. It is the improper or illegal use of an older person’s funds, property or resources, and includes physical and emotional abuse..

FAQs

What if the deceased didn’t make a Will or a Will cannot be found?

If there is no Will, a deceased Estate will be distributed in accordance with the rules of intestacy. These rules provide for the distribution of the estate, generally according to which relatives survive the deceased.  For example, if the deceased is survived by their spouse and children, their spouse will receive the household chattels (furniture, whitegoods etc), the first $150,000 of the estate and either half or a third of the residue of the Estate, depending on whether they are survived by one or more children. The children will receive the balance of the estate equally between them.

What is a family provision claim and what are the time limits?

A family provision claim assumes there is a valid will but asks the court to decide that the provision, if any, made in the Will for the applicant is not adequate, having regard especially to the applicant’s financial circumstances and their relationship with the deceased person. Although a family provision claim is often also described as “contesting” or “challenging” a Will, we have used those terms to describe a claim that the Will is has not been validly made – see “Contesting a Will”.

Strict time limits apply in making a family provision claim. Here are the time frames for all the Australian jurisdictions:

  • Queensland – You have six months from the date of death to notify the executor of the estate you intend to make a claim. You have nine months from the date of death to file your application in Court.
  • New South Wales – You have 12 months from the date of death to file your application in Court.
  • Victoria – You have 6 months from when a grant of probate issues to file your application in Court.
  • Western Australia – You have 6 months from when a grant of probate issues to file your application in Court.
  • South Australia – You have 6 months from when a grant of probate issues to file your application in Court.
  • Tasmania – You have 3 months from when a grant of probate issues to file your application in Court.
  • Northern Territory – You have 12 months from when a grant of probate issues to file your application in Court.
  • Australian Capital Territory – You have 12 months from when a grant of probate issues to file your application in Court.

There is scope for an extension of time in certain circumstances. You shouldn’t just give up because you perceive you are out of time. It would still be wise to urgently seek legal advice.

What is contesting a Will and how do I do it?

It is possible to challenge or contest the validity of a Will for different reasons and on different grounds, for example:

  • The deceased did not have capacity when he made his Will;
  • The deceased did not know and approve the contents of the Will;
  • The Will was made in suspicious circumstances; and
  • The Will was the result of fraud or undue influence on the deceased.
I am not happy with the Executor of a Will, what can I do?

If you feel that the Executor of a Will is not carrying out his or her duties properly, the Executor has a conflict of interest, or is acting improperly, it may be necessary to have the Executor removed by the Court. The Courts have wide powers to remove a personal representative/executor however it is in the Court’s discretion as to whether the Executor is removed. The Court will consider mismanagement of a deceased Estate and also misconduct of the Executor in an application.

I was financially dependent on the deceased. What are my options?

If you were financially dependent on someone prior to their death and have been unfairly left out of a Will, then contesting a Will or disputing a Will may not be your only option.

Also, the deceased person may have had superannuation death benefits payable to relatives or anyone who was in a financially dependent on or interdependent with the deceased. It is important that someone who was financially dependent on or interdependent with the deceased makes a claim for any of the deceased’s superannuation death benefits payable.

Depending on whether there is a binding death benefit nomination in place, and how the trustee of a superannuation fund intends to pay the superannuation funds, you may also need to consider lodging a family provision claim or contesting a Will to protect your interests (for example if the superannuation monies are paid into the Estate funds, rather than to you directly).

Why Us?

30+ Years Experience

Mitchells Solicitors has a long and exciting history. It was firstly known as Janssen & Janssen. The Principal of the firm, Bryan Mitchell, joined the firm Janssen & Janssen in August 1995. In April of 1998 Bryan was admitted into partnership and the firm changed its name to Janssen Mitchell. At the start of 2000, Bryan took over the firm as sole proprietor, and shortly thereafter changed its name to Mitchells Solicitors and Business Advisors and sometime after that to simply Mitchells Solicitors. In the last 20 years the firm has grown in both size and reputation as more and more people choose Mitchells Solicitors to meet their legal needs.

In 2006 the firm Wyman & Co merged with Mitchells Solicitors. Wyman & Co had a lengthy history of over 60 years in Brisbane. In 2013 O’Dwyer & Bradley Solicitors merged with Mitchells Solicitors. Its Principal, Tim O’Dwyer, joined the firm as a consultant. O’Dwyer & Bradley’s history goes back some 40 years.

Mitchells Solicitors started as a general legal practice, and now, over 20 years later, in the area of Wills and Estates, has received the following recognitions: 

  • Doyles Guide – 2020 Leading in Wills, Estates & Succession Planning Law Firms – Queensland (One of the First Tier firms in Estate Planning)
  • Doyles Guide – 2020 Leading in Wills & Estates Litigation, QLD
  • Doyles Guide – 2020 Leading in Wills & Estates Litigation Lawyers, QLD

The modern firm of Mitchells Solicitors is a boutique Wills & Estates and Trusts practice.  Bryan Mitchell is accredited as a specialist by the Queensland Law Society (there being only 47 out of over 13,000 lawyers in Queensland).  We are able to help you with your estate or trust dispute or planning.

Leading in Wills & Estate Litigation
  • 2020 Leading – Wills, Estates & Succession Planning Law Firms – (One  of the First Tier firms in Estate Planning)
  • 2020 Leading – Wills & Estates Litigation Lawyers  – Queensland
  • 2019 Leading – Wills & Estates Litigation – Queensland.
  • 2019 Leading  – Wills, Estates & Succession Planning Lawyers  – Queensland

Bryan works almost exclusively in the area of Wills and Estates and Trusts, including Estate Planning, Elder Law, Estate Administration and Estate Disputes. Bryan has a special interest in helping parents who have a child with a disability, with their estate planning. Bryan was one of the early members of the Queensland Branch of the Society of Trust and Estate Practitioners and presently serves as Chair and is Vice Chair for the regional body called STEP Australia.

47 Accredited Specialists in Queensland

Bryan assists clients in Wills and Estates, Trusts and Elder Law. His expertise is recognised by the Queensland Law Society, being an Accredited Specialist in Succession Law. There are presently only 47 such specialists out of roughly 13,000 lawyers in Queensland. More recently, Bryan was awarded Master of Laws (Applied Laws – Wills & Estates) from the College of Law.

Affordable Payment Structure

We offer flexible payment options. In certain circumstances, we will defer our fee until there is an outcome.

Our Lawyers

Bryan Mitchell

Managing Director & Accredited Specialist in Succession Law (Qld)

Bryan assists clients in the three areas of Wills and Estates, being Estate Planning, Estate Disputes and Estate Administration. His expertise is recognised by the Queensland Law Society, being an Accredited Specialist in Succession Law (which is another word for Wills and Estates).  There are presently only 47 such specialists out of roughly 13,000 lawyers in Queensland.

More recently Bryan and the firm Mitchells was recognised by the influential Doyles Guide in two categories, being:

  • 2020 Leading – Wills, Estates & Succession Planning Law Firms – Queensland (One of the First Tier firms in Estate Planning)
  • 2020 Leading – Wills & Estates Litigation Lawyers – Queensland
  • 2019 Leading – Wills & Estates Litigation – Queensland
  • 2019 Leading – Wills, Estates & Succession Planning Lawyers – Queensland
Mehera Saunders

Mehera Saunders

Special Counsel & Accredited Specialist in Succession Law (Qld)

David Graham

David Graham

Senior Associate

Kylee Ghodsi

Kylee Ghodsi

Senior Associate

Kate Muller

Kate Muller

Senior Associate

Naomi Williams

Naomi Williams

Solicitor

Eirini Georgiou

Eirini Georgiou

Solicitor

From Our Clients

Keep up caring for your clients. It makes the biggest difference for those looking for professionals in your field.

Keyra A.

I’ve dealt with Mitchell Solicitors for both personal matters and helping my financial planning clients with their Estate planning for the past 3 years and have nothing but praise for them. They deal with their clients with honesty and integrity and they get the job done well.

Jason B.

Bryan Mitchell is a specialist in all aspects of estate law. His legal knowledge in this area makes him a stand out in this area of law.

Ann J.

Let’s Work Together

Contact Us

Moorooka Office:
Level One, Moorooka Mall
147 Beaudesert Rd Moorooka QLD 4105

Aspley Office: (by appointment only)
Mezzanine Level, Aspley Hypermarket
59 Albany Creek Road
Aspley QLD 4034

City Office: ( by appointment only )
Level 38, Riparian Plaza, 71 Eagle Street, Brisbane, QLD 4000

Sunshine Coast: ( by appointment only )
1st floor, Tower 2 @ Kon-Tiki 55 Plaza Parade Maroochydore QLD 4558