How to Contest a Will in Australia (2026) | Grounds, Process, Costs

When and Why Wills Are Contested

Losing someone you love is hard enough without a legal dispute over their estate. But every year, thousands of Australian families find themselves in exactly that situation — questioning whether a Will truly reflects the wishes of the person who made it, or whether they have been unfairly left out.

Contesting a Will means formally challenging its validity or the way it distributes assets. The process is emotionally taxing, often expensive, and can permanently damage family relationships. But in some situations — where there are genuine concerns about coercion, capacity, or a dependent has been left without adequate provision — it may be the right step.

Important: Contesting a Will is a complex legal matter. This guide provides general information, but it is not a substitute for professional legal advice. If you are considering contesting a Will — or defending one — we strongly recommend consulting a solicitor who specialises in succession law.

Legal Grounds for Contesting a Will

You cannot contest a Will simply because you are unhappy with what you received. The law requires specific legal grounds, falling into two categories: challenging the validity of the Will itself, or making a family provision claim because you were not adequately provided for.

1. Lack of Testamentary Capacity

The Will-maker (testator) must have had testamentary capacity at the time they made the Will. This means they understood:

• That they were making a Will and its effect
• The nature and extent of their assets
• The people who might reasonably expect to benefit (and be able to weigh those claims)
• That they were not suffering from a disorder of the mind that influenced their decisions

If the testator had dementia, a serious mental illness, or was heavily medicated when the Will was signed, the Will may be challenged on this ground.

How it arises in practice: An elderly parent creates a new Will shortly before death, dramatically changing who inherits. Family members question whether the parent truly understood what they were doing.

2. Undue Influence

A Will must reflect the free and voluntary wishes of the testator. If someone pressured, manipulated, or coerced the testator into making or changing a Will, it can be challenged on grounds of undue influence.

This is one of the most difficult grounds to prove. The court requires evidence that the testator’s free will was overborne — not merely that someone made suggestions or expressed wishes.

How it arises in practice: A carer or family member who had significant control over a vulnerable testator’s daily life is the primary beneficiary of a Will that excludes other family members.

3. Fraud or Forgery

If a Will was forged, if the testator was deceived about what they were signing, or if someone fabricated or altered the document, the Will is invalid.

How it arises in practice: A signature does not match the testator’s known handwriting, or the Will contains provisions the testator had explicitly told others they did not want.

4. Improper Execution

Every Australian state and territory requires a Will to be:

• In writing
• Signed by the testator (or by someone authorised, in their presence and at their direction)
• Witnessed by two independent adults who both sign in the testator’s presence

If any of these requirements were not met, the Will may be invalid. Some states allow courts to admit improperly executed Wills if satisfied they represent the testator’s intentions (known as dispensing power), but this is discretionary and not guaranteed.

For the specific witnessing rules in your state, see our state-by-state Will guides.

5. Family Provision Claims (Inadequate Provision)

This is the most common ground for contesting a Will in Australia. Even if a Will is perfectly valid and properly executed, certain eligible people can apply to the court for a greater share of the estate if they believe they were not adequately provided for.

Family provision claims are covered in detail in the next section.

Who Can Contest a Will?

Not everyone can contest a Will. Eligibility depends on your relationship to the deceased and varies by state.

Validity Challenges (Grounds 1–4)

Any person with a sufficient interest can challenge validity — typically beneficiaries named in a previous Will, people who would inherit under intestacy, or a previous executor.

Family Provision Claims (Ground 5)

Eligibility is defined by each state’s legislation:

*QLD stepchildren may claim only if they can meet a strict dependency test.

Key takeaway: NSW and VIC have the broadest classes of eligible claimants. QLD and WA are more restrictive. If you live in a state with broad eligibility rules, protecting your Will from challenge becomes even more important. Families with stepchildren or former spouses should also review our guide to estate planning for blended families.

Family Provision Claims Explained

Family provision claims (sometimes called “testator’s family maintenance” claims) are by far the most common type of Will contest in Australia. They do not argue that the Will is invalid — instead, they argue that the Will fails to make adequate provision for someone the testator had a moral obligation to provide for.

What the Court Considers

When deciding a family provision claim, the court weighs a range of factors, including:

• The claimant’s financial needs — income, assets, debts, health, and ability to earn
• The size of the estate — a modest estate limits what the court can redistribute
• The claimant’s relationship with the deceased — closeness, duration, nature of the relationship
• Any obligations the deceased had to the claimant (financial or moral)
• The claimant’s age and health — elderly or disabled claimants may receive more consideration
• The needs of other beneficiaries — the court must balance competing claims
• Whether the deceased provided reasons for excluding or limiting the claimant
• Contributions the claimant made to the deceased’s estate or welfare
• Any other relevant matter the court considers appropriate

What the Court Can Do

If the court finds that the Will does not make adequate provision, it can order a lump sum payment, transfer of property, an ongoing income stream, or a life interest in property. The court aims to make adequate provision — not necessarily equal provision. The goal is not to rewrite the Will entirely, but to ensure that people the testator had a moral duty to provide for are not left without reasonable support.

Time Limits for Contesting a Will by State

Time limits for family provision claims are strict. If you miss the deadline, the court will generally not hear your claim unless you can demonstrate exceptional circumstances.

Critical notes:

• Tasmania has the shortest deadline — just 3 months from the grant of probate. If you are in Tasmania and considering a claim, seek legal advice immediately.
• NSW and NT measure from date of death, not from probate. This means the clock starts ticking even before the estate administration process begins.
• Courts may extend these deadlines in exceptional circumstances, but extensions are not guaranteed and require a strong justification for the delay.

The Will Contest Process

Contesting a Will is not a quick process. Even straightforward cases typically take 6 to 18 months. Complex or contested matters can take several years.

Step 1: Get Legal Advice

Before taking any action, consult a solicitor who specialises in wills and estates or succession law. They will assess whether you have a viable claim, advise you on the likely costs and outcomes, and help you understand the time limits that apply in your state.

Many succession lawyers offer an initial consultation for a fixed fee or at no charge.

Step 2: Lodge a Caveat or Notify the Executor

If you intend to challenge validity, lodge a caveat with the probate registry to prevent estate distribution. For family provision claims, notify the executor in writing that you intend to claim. Your solicitor can also request a copy of the Will from the executor or probate registry on your behalf.

Step 3: Attempt Mediation

Most states require or strongly encourage mediation before a matter proceeds to a court hearing. Mediation involves a neutral third party who helps both sides negotiate a settlement. It is less formal, less expensive, and less adversarial than a court hearing.

A significant majority of Will disputes — some estimates suggest 70 to 80% — are resolved at mediation without ever reaching a courtroom.

Step 5: File a Court Application

If mediation fails, your solicitor files a formal application with the Supreme Court in your state, setting out the grounds, the relief sought, and supporting evidence.

Step 6: Court Hearing and Decision

The court hears evidence from both sides — financial records, medical evidence, witness testimony, and expert reports. The judge may dismiss the claim, vary the Will to provide additional provision, declare the Will invalid, or make costs orders against one or both parties.

Costs of Contesting a Will

Contesting a Will can be expensive. Understanding the potential costs before you begin is essential.

Legal Fees

Solicitor fees for Will contests vary widely depending on complexity:

Some solicitors offer no-win-no-fee arrangements for family provision claims, but these are not universal and may come with conditions.

Court Costs

Filing fees vary by state but typically range from $1,000 to $3,000. Additional costs may include mediation fees, expert reports (medical or financial), and subpoena fees.

Costs Orders

The court may order you to pay the other side’s legal costs if your claim fails. This is not automatic, but it is a real risk your solicitor should discuss before you proceed. Conversely, successful claims may have costs paid from the estate — though this reduces the total available for distribution.

How to Protect Your Will from Being Contested

No Will is completely immune from challenge, but these steps make yours significantly harder to contest.

1. Use Clear, Unambiguous Language

Vague or contradictory provisions are an invitation for dispute. Be specific about who receives what, in what proportions, and under what conditions.

2. Have Your Will Professionally Reviewed

A Will that has been reviewed by a qualified solicitor carries significantly more weight. ezyWill generates legally structured Wills compliant with your state’s legislation, and our $99/year plan includes access to lawyer review.

3. Obtain a Capacity Assessment

If you are elderly or have a health condition that could be used to question your capacity, consider having your doctor provide a written assessment of your testamentary capacity at the time you make your Will. This is one of the most powerful defences against a capacity challenge.

4. Explain Unusual Bequests

If you are leaving a larger share to one child, excluding a family member, or making a significant charitable bequest, consider including a statement of reasons with your Will. While not legally required, a clear explanation of your reasoning makes it harder for challengers to argue that the Will does not reflect your true intentions.

5. Keep Your Will Up to Date

An outdated Will is more vulnerable to challenge. If your Will was made years ago and does not reflect your current circumstances, a court may be more sympathetic to claimants who argue it does not represent your final wishes. Keep your Will regularly updated after every major life event.

6. Ensure Proper Execution

Follow the witnessing requirements for your state exactly. Have two independent adults witness your signature, and ensure they also sign in your presence. Do not use beneficiaries as witnesses. For state-specific requirements, see our Will guides by state.

7. Address Potential Claimants

If someone might contest your Will (an estranged child, an ex-spouse), consider including a modest provision with a clear explanation. A small gift may be less costly to the estate than a protracted legal battle.

Real-World Examples

The following examples are based on common patterns in Australian Will disputes. Names and identifying details have been changed.

Example 1: The Excluded Daughter

Robert, 82, made a new Will six months before his death, leaving everything to his son Craig and excluding his daughter Michelle. Michelle — a single mother with limited income — filed a family provision claim in NSW. Despite five years of estrangement, the court ordered 25% of the estate redirected to Michelle, noting that estrangement does not extinguish a parent’s moral obligation to provide for children in genuine financial need.

Lesson: If you intend to exclude a child, document your reasons clearly and seek legal advice. A court may still override your wishes.

Example 2: The Capacity Challenge

Patricia, 79, had early-stage dementia and made a new Will one year before dying, changing her executor and leaving 40% to a charity she had never supported. Her daughter challenged on capacity grounds, presenting medical records showing cognitive decline. The court found Patricia lacked testamentary capacity and reinstated the previous Will.

Lesson: If you are making a Will during illness, a contemporaneous medical capacity assessment is your strongest defence.

Example 3: The De Facto Partner

James and Lauren had lived together for eight years but never married. James’s Will left everything to his adult children. Lauren filed a family provision claim in Victoria, presenting evidence of her financial contributions and caregiving. The court ordered Lauren receive 35% of the estate.

Lesson: De facto partners have strong legal standing across Australia. Consider your partner’s needs when making your Will — and communicate openly with your family.

Frequently Asked Questions

Can anyone contest a Will in Australia?

No. To challenge a Will’s validity (capacity, undue influence, fraud, execution), you need a “sufficient interest” in the estate — typically meaning you would benefit if the Will were overturned. For family provision claims, only eligible claimants defined by your state’s legislation can apply. Eligibility usually includes spouses, de facto partners, children, and in some states, dependants, parents, and household members.

How long do I have to contest a Will?

Time limits vary by state. The shortest is 3 months (Tasmania, from grant of probate). The longest is 12 months (NSW and NT, from date of death). Other states allow 6 to 9 months from either death or probate. Missing the deadline usually means losing the right to claim, so seek legal advice promptly.

How much does it cost to contest a Will in Australia?

Costs range from $5,000–$15,000 for a claim resolved at mediation to $60,000–$150,000+ for a contested hearing. Some solicitors offer no-win-no-fee arrangements for family provision claims. If your claim is unsuccessful, you may also be ordered to pay the other side’s costs.

Can a Will be contested after probate is granted?

Yes. A grant of probate does not prevent a Will from being contested. However, the time limits are strict, and if the executor has already distributed the estate, recovering assets becomes significantly more difficult.

Can I contest a Will if I was left a small amount?

Yes. Family provision claims are not limited to people who were completely excluded. If you received some provision but believe it is inadequate given your needs and circumstances, you may still have a valid claim.

What is the success rate of Will contests in Australia?

Estimates suggest that 60 to 70% of family provision claims result in some additional provision — either through mediation settlement or court order. Validity challenges (capacity, undue influence) have lower success rates because the burden of proof is higher.

Does contesting a Will delay estate distribution?

Yes. While a contest is pending, the executor should not distribute the estate. Mediation may add 3 to 6 months. Complex matters proceeding to hearing can delay distribution by 1 to 3 years or more.

Can an executor contest the Will they are responsible for?

This creates a conflict of interest. An executor who wishes to contest should seek legal advice about renouncing their role before pursuing a claim. The court may appoint an independent administrator while the claim is resolved.

How can I make my Will harder to contest?

The most effective strategies are: ensure proper execution (two independent witnesses), obtain a capacity assessment if your health is in question, include clear reasons for any unequal or unusual distributions, have the Will reviewed by a solicitor, keep it regularly updated, and communicate your wishes to your family during your lifetime. See our guide to creating a strong Will for more details.

This article is for general informational purposes only and does not constitute legal advice. Will contest laws differ between Australian states and territories and are subject to change. Contesting a Will is a complex legal process with significant financial implications. We strongly recommend consulting a qualified solicitor who specialises in succession law before taking any action. ezyWill provides legally structured Will templates but does not provide legal representation for Will disputes.