How to Contest a Will in Australia
Losing a loved one is hard enough. If you believe you've been unfairly left out of or inadequately provided for in their will, you may have legal rights. This guide explains who can contest a will in Australia, the grounds available, how the process works, and the mistakes that can cost you your claim.
How to Contest a Will in Australia
Losing someone you love is hard enough. Discovering that their will doesn't reflect what you believed they intended — or that you've been left with little to nothing despite years of close relationship and genuine need — can be devastating and deeply confusing.
Contesting a will is a legitimate legal process available to eligible people in Australia. It is not about greed, and it is not about disrespecting the person who has passed. It is about ensuring the law operates fairly and that those who should have been provided for actually are. This guide explains who can contest a will, on what grounds, how the process works, what it costs, and the mistakes that can undo an otherwise valid claim.
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What Does It Mean to Contest a Will in Australia?
Contesting a will means formally challenging either the validity of the will itself, or the adequacy of what it provides for you. There are two distinct legal pathways, and understanding the difference matters.
Challenging the will's validity means arguing that the document should not be treated as a lawful will at all. This might be because the person who made it (the testator) lacked the mental capacity to do so, was pressured by someone into changing it, or because the document was improperly executed or fraudulent.
Making a Family Provision Claim is the more common pathway. It does not dispute that the will is valid — it argues that the will failed to make adequate provision for your proper maintenance, education, or advancement in life. This type of claim is available in all Australian states and territories, though the rules differ between jurisdictions.
Importantly, feeling that a will is unfair is not enough. You must be an eligible person and you must demonstrate a genuine financial need or hardship arising from being inadequately provided for.
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Who Is Eligible to Contest a Will in Australia?
Eligibility is defined by legislation in each state and territory, but the categories are broadly similar across Australia.
Spouses and De Facto Partners
If you were married to the deceased or in a genuine de facto relationship (including same-sex partnerships) at the time of their death, you are generally eligible to make a claim in every Australian jurisdiction.
Children
Biological children, adopted children, and in many states, stepchildren and children treated as members of the family are eligible. The strength of a stepchild's claim often depends on the level of financial dependency on the deceased during their lifetime.
Former Spouses and Partners
In some circumstances, a former spouse or de facto partner may still be eligible — particularly where there was no final property settlement before death. However, this varies significantly by state. South Australia introduced new restrictions in January 2025 narrowing eligibility for former spouses.
Dependants
Any person who was wholly or partly financially dependent on the deceased at the time of death may be eligible. This can include grandchildren who lived with the deceased, carers, and other relatives who relied on the deceased for financial support.
Close Personal Relationships
New South Wales legislation extends eligibility to people who were in a "close personal relationship" with the deceased — meaning a relationship of mutual commitment and support that was not a commercial or sexual relationship. This category was introduced to capture carers and companions not otherwise covered.
If you are unsure whether you are an eligible person, speaking with a wills and estates solicitor promptly is essential. Time limits apply, and uncertainty about eligibility is not a reason to delay.
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Grounds for Contesting a Will
Lack of Testamentary Capacity
For a will to be valid, the person making it must have been of sound mind, memory, and understanding at the time of signing. They must have understood the nature of making a will, the extent of their property, the claims of people who might reasonably expect to be included, and how those factors interact.
Cognitive decline, dementia, the effects of medication, or serious illness can all raise questions about testamentary capacity. If medical evidence supports a finding that the testator lacked capacity, the will may be declared invalid.
Undue Influence or Coercion
A will must reflect the free and independent wishes of the person making it. If a beneficiary — or anyone else — pressured, manipulated, or threatened the testator into making or altering a will, that document may be set aside.
Undue influence is notoriously difficult to prove because it typically occurs in private. Evidence tends to be circumstantial — patterns of behaviour, the isolation of the testator from other family members, sudden changes to previous wills, or testimony from those who observed the testator's state of mind.
Fraud or Forgery
If the will is a forged document, or if the testator was deceived about the nature of what they were signing, the will is void. This is rare but does occur, particularly in estate disputes involving significant assets and estranged family members.
Improper Execution
Australian law requires a will to be signed by the testator in the presence of two independent adult witnesses, who must also sign the document. If these formalities are not correctly observed, the will may be challenged on the basis of improper execution.
Family Provision — Inadequate Provision
This is by far the most common type of claim. Even if the will is perfectly valid, a court can order additional provision to be made from the estate for an eligible claimant who was inadequately provided for.
Courts consider a wide range of factors: the size of the estate, your financial circumstances and needs, your relationship with the deceased, any contributions you made to the estate or the deceased's welfare, and whether the deceased had a moral duty to provide for you.
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How the Process Works in Australia
Step 1 — Seek Legal Advice Immediately
Time limits are strict and unforgiving. If you believe you may have grounds to contest a will, you should contact a solicitor specialising in wills and estate disputes as soon as possible — ideally within weeks of learning about the will's contents.
Step 2 — Check the Time Limits
Time limits vary by state:
- New South Wales: 12 months from the date of death
- Victoria: 6 months from the grant of probate
- Queensland: 9 months from the date of death
- Western Australia: 6 months from the grant of probate
- South Australia: 6 months from the grant of probate
- Tasmania: 3 months from the grant of probate
- ACT: 12 months from the date of death
- Northern Territory: 12 months from the date of death
Courts can sometimes grant extensions, but this is not guaranteed. Missing the deadline without good reason can cost you your right to claim entirely.
Step 3 — Gather Your Evidence
Your solicitor will help you identify and compile the documentation needed to support your claim. This may include:
- The will and any previous wills
- The grant of probate (or letters of administration)
- Medical records (if challenging capacity)
- Financial records demonstrating your need and the size of the estate
- Evidence of your relationship with the deceased — correspondence, photographs, witness statements
- Records of any contributions you made to the estate or the deceased's care
Step 4 — Lodge a Caveat or Commence Proceedings
If probate has not yet been granted, your solicitor may lodge a caveat to prevent the estate being distributed while your claim is considered. If probate has already been granted, you will need to commence proceedings in the Supreme Court of the relevant state or territory.
Step 5 — Attempt Mediation
The vast majority of contested will disputes in Australia are resolved at mediation — a structured negotiation process facilitated by an independent mediator. Courts actively encourage parties to resolve estate disputes this way, and many jurisdictions require mediation before the matter can proceed to a full hearing.
Mediation is private, faster, and significantly less expensive than litigation. If you reach an agreement, the terms can be formalised by consent orders.
Step 6 — Court Hearing
If mediation fails, the matter proceeds to a court hearing. Both sides present their evidence and arguments, and a judge makes a determination. Court hearings in estate disputes can take one to several days and generate substantial legal costs for all parties.
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What Does It Cost to Contest a Will?
Costs vary considerably depending on whether the matter resolves at mediation or proceeds to trial, the complexity of the estate, and the state in which you are claiming.
A family provision claim resolved through mediation typically costs between $10,000 and $30,000 in legal fees. If the matter goes to a full court hearing, costs for all parties combined can easily exceed $100,000.
The important question is who pays those costs. In estate litigation, it is common (though not automatic) for successful claimants' legal costs to be paid from the estate. Courts exercise discretion in making cost orders, and the conduct of each party during proceedings will influence their decision.
Some solicitors handle estate claims on a conditional fee arrangement — sometimes called "no win, no fee" — where you only pay if you are successful. Discuss this with your solicitor early to understand the financial risk clearly.
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Common Mistakes to Avoid
Waiting too long. Time limits are the single most common reason valid claims are lost. Delays in seeking legal advice, even by a few months, can be fatal to your claim.
Not getting specialist advice. Estate litigation is a specialist area. A general practice solicitor may not have the depth of experience to advise you on the realistic prospects of your claim or to navigate court procedures effectively.
Treating it as purely emotional. Courts do not make provision based on hurt feelings or a sense of injustice. They look at financial need, the nature of the relationship, contributions to the estate, and the overall circumstances. You need to present a factual, evidence-based case.
Assuming you will automatically win. Having a legitimate claim does not mean you will succeed. The strength of your case depends heavily on your specific circumstances, the size of the estate, and the competing interests of other beneficiaries.
Failing to preserve evidence. Delete nothing, discard nothing. Medical records, text messages, letters, and bank statements can all become relevant. Preserve everything until your solicitor has reviewed your situation.
Trying to negotiate directly with the executor. While it may feel like the straightforward approach, direct negotiations with the executor without legal advice can inadvertently weaken your position or create complications down the track.
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Frequently Asked Questions
Can I contest a will if I was not mentioned in it at all?
Yes — in fact, being left out entirely is one of the most common triggers for a family provision claim. Being omitted from a will does not disqualify you from making a claim, provided you are an eligible person under the relevant state legislation.
Will contesting a will damage my relationships with the family?
This is a real concern for many people. Estate disputes can be painful and divisive. However, mediation — which resolves most claims — is conducted privately and can be less adversarial than courtroom litigation. Many families find that reaching a negotiated resolution is preferable to prolonged uncertainty.
What if there are multiple claimants?
It is not uncommon for several eligible people to make claims against the same estate simultaneously. Courts must consider all claims together and balance the needs of each claimant against the size of the estate and the intentions expressed in the will.
Does the size of the estate matter?
Yes. Courts will not make an order for provision that exceeds what is reasonable given the total size of the estate. In very small estates, the practical reality is that legal costs may consume any benefit achieved, which is something a good solicitor will advise you on honestly before you proceed.
Can a de facto partner contest a will?
Yes, provided the relationship was genuine and ongoing at the time of death. You may need to demonstrate the nature and duration of the relationship with evidence such as joint accounts, shared residence, or statutory declarations from people who knew you both.
What if a new will was created shortly before death?
Late changes to a will — particularly where the deceased was elderly or unwell — can raise red flags around testamentary capacity and undue influence. Sudden, significant changes to how an estate is distributed in the final weeks or months of someone's life are frequently the subject of successful challenges.
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Taking the Next Step
Contesting a will is a serious legal process. The outcome depends on the specific facts of your situation — your relationship with the deceased, your financial circumstances, the size of the estate, and the legal requirements of your state. Getting the right advice early gives you the best chance of achieving a fair result.
BestSolicitors.com connects Australians with verified, experienced solicitors specialising in estate disputes and family provision claims. Use our search to find a qualified wills and estates solicitor in your state and get the expert guidance your situation deserves.
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This article is for general informational purposes only and does not constitute legal advice. Please consult a qualified solicitor for advice specific to your situation.