Disputes over inheritance have become more common across Australia, often arising from family breakdowns, second marriages, or questions around fairness in a will. If you’ve been left out of a will or believe the distribution of assets is unjust, you may be wondering whether contesting a will is possible — and how the process works.
This blog explains when and how a will can be contested in Australia, who is eligible to do so, the legal grounds for a challenge, and what to expect during the process. While inheritance disputes can be complex, understanding your options is the first step toward resolving them.
Contesting a Will? Here’s a Quick Summary
- Only certain people (spouses, children, dependants) can legally contest a will.
- Common grounds include lack of capacity, undue influence, fraud, or inadequate provision.
- Time limits vary — from 3 to 12 months depending on the state.
- Legal advice helps assess eligibility, build a strong case, and resolve matters efficiently.
- Law Tram helps you connect with the right wills lawyer securely and confidentially.
Who Can Contest a Will?
Australian law doesn’t allow just anyone to challenge a will. To contest a will, you must fall into an eligible category defined by the legislation in the state or territory where the deceased lived or owned property. Generally, eligible claimants include:
- Spouses — including de facto and same-sex partners.
- Children — including biological, adopted, and in some states, stepchildren.
- Former spouses or partners — in limited circumstances.
- Dependants — individuals financially supported by the deceased at the time of death.
- Others with a legitimate expectation — such as someone who was promised a share of the estate or had a close relationship.
Each state defines these categories differently. For example:
- In NSW, a stepchild may be eligible only if they were wholly or partly dependent on the deceased under the Succession Act 2006 (NSW).
- In VIC, the definition of eligible persons includes registered caring partners and grandchildren in some situations, as set out in the Administration and Probate Act 1958.
- In WA, de facto partners must have been living with the deceased for at least two years or have a child with them under the Family Provision Act 1972.
Legal Grounds for Challenging a Will
Once eligibility is confirmed, you need to establish a legal reason for challenging the will. Common grounds include:
1. Lack of Testamentary Capacity
The person making the will (the “testator”) must have had the mental capacity to understand what they were doing when the will was made. If they were suffering from dementia or another condition affecting their cognitive ability, the will may be challenged on this basis.
2. Undue Influence
A will may be invalid if someone pressured or coerced the testator into changing their wishes. This is more than simple persuasion — it involves manipulation or abuse of power that overrides the testator’s free will.
3. Fraud or Forgery
If a will was forged, tampered with, or created under fraudulent circumstances, it can be set aside by the court.
4. Failure to Provide Adequate Provision
This is the most common basis for challenging a will in Australia. Known as a family provision claim, it applies when the will doesn’t make adequate financial provision for someone the deceased had a duty to support.
Checklist: Should You Consider Contesting a Will?
Here’s a quick checklist to see if you might have a valid claim:
- ✔️ You’re a spouse, child, dependant, or former partner under state law
- ✔️ The will excludes you or leaves you with little to no provision
- ✔️ You suspect the will was changed under pressure or manipulation
- ✔️ Probate has not yet been granted or was granted recently
- ✔️ You’re within the time limit to lodge a claim (3–12 months by state)
- ✔️ You’ve spoken to a lawyer or are ready to get legal advice
Example Scenario 1: A Contested Will Case
When Melissa’s father passed away, his will left everything to his new spouse, excluding Melissa and her two siblings. The estate was valued at over $1.2 million. Melissa had been financially dependent on her father due to ongoing health issues. After seeking legal advice, she lodged a family provision claim and was ultimately awarded a significant share of the estate during mediation — without going to trial.
Example Scenario 2: Contesting a Will Based on Undue Influence
David noticed his mother’s will had been changed just weeks before her passing — favouring a neighbour who had been helping her manage errands. David suspected undue influence, as his mother had early-stage dementia and wasn’t likely to have made such a drastic change without help. The court found the will invalid and reinstated an earlier version.
State-by-State Differences in Contesting a Will
Each state and territory has its own legislation governing will disputes. The core principles are similar, but eligibility rules, time limits, and processes differ.
| State/Territory | Governing Law | Time Limit to File | Key Differences |
|---|---|---|---|
| NSW | Succession Act 2006 | 12 months from death | Includes stepchildren and de facto partners under certain conditions |
| VIC | Administration and Probate Act 1958 | 6 months from probate | Grandchildren and registered caring partners may be eligible |
| QLD | Succession Act 1981 | 9 months from death (6 to notify) | Must give notice within 6 months of death |
| WA | Family Provision Act 1972 | 6 months from probate | De facto partners must have lived together 2+ years or share a child |
| SA | Inheritance (Family Provision) Act 1972 | 6 months from probate | Stepchildren generally excluded unless financially dependent |
| TAS | Testator’s Family Maintenance Act 1912 | 3 months from probate | Shortest time frame nationally |
| ACT | Family Provision Act 1969 | 6 months from probate | Similar rules to NSW |
| NT | Family Provision Act 1970 | 12 months from grant | Small jurisdiction, rules align closely with ACT |
Common Pitfall: Relying on Informal Promises
It’s not uncommon for individuals to rely on verbal promises or handwritten notes about inheritance — but without a valid will or formal documentation, these are rarely upheld in court. Legal advice is crucial to determine what’s enforceable.
How to Contest a Will: Step-by-Step
- Confirm Eligibility — Check whether you meet the definition of an eligible person under the relevant legislation.
- Seek Legal Advice Early — Strict time limits apply, so speaking with a wills lawyer promptly is important to preserve your rights.
- Lodge Your Claim in the Supreme Court — Applications are typically made in the Supreme Court of the state or territory where the will is being probated.
- Prepare Evidence — Documentation may include medical records, financial dependency evidence, and proof of relationship.
- Mediation — Courts often require parties to attempt resolution through mediation to avoid the cost and stress of trial.
- Court Determination — If mediation fails, the court will review the evidence and issue a binding decision.
Each state’s Supreme Court governs family provision claims. For example, in NSW, the Succession Act 2006 sets out clear eligibility and procedural requirements. These differ across VIC, QLD, and WA — legal guidance is essential to navigate state-specific rules.
What Can Happen After Contesting a Will?
The court may:
- Uphold the will — if no valid grounds are found.
- Vary the terms — to include or increase provision for a claimant.
- Invalidate the will — and apply a prior valid will or intestacy laws if no earlier version exists.
Costs are typically paid from the estate, but the court may order the claimant to pay legal fees if the claim is unsuccessful or unreasonable.
Common Misconceptions About Contesting a Will
- “I’m named in the will, so I can’t challenge it.” False — even if you’ve received something, you can argue it’s inadequate.
- “Only blood relatives can contest.” Not true — de facto partners, former spouses, and dependants may all have standing.
- “I can challenge the will because it’s unfair.” Unfairness alone isn’t enough; you must meet legal eligibility and grounds.
When Not to Contest a Will
Not every disagreement with a will is grounds for legal action. You may not have a strong case if:
- You are not an eligible person under the relevant legislation.
- The estate is small and legal costs would outweigh any potential benefit.
- The will is valid, fair, and clearly drafted.
- Your challenge is based solely on disappointment or hurt feelings.
What if There’s No Will?
If a person dies without a valid will, they are said to have died intestate. In this case, the estate is distributed according to a legal formula set by each state or territory. You cannot “contest” the will in the traditional sense, but if you were financially dependent and not provided for, you may still make a family provision claim.
How Long Does It Take and What Will It Cost?
If you’re contesting a will, most will disputes resolve within 6 to 18 months, depending on the complexity and whether mediation is successful. Legal costs can vary significantly. In many cases, fees are paid from the estate, but courts may make alternative cost orders depending on the outcome and conduct of the parties.
Expert Insight from a Participating Lawyer
“Many people delay challenging a will because they’re unsure if they have a case. The truth is, even modest estates can be worth contesting when legal eligibility and financial need are clear.” — Participating Estate Lawyer from the Law Tram Network
Recent Legal Trends
In recent years, there’s been an increase in disputes involving blended families and informal wills, especially those written without legal advice. Courts are placing more weight on proper execution and testamentary capacity — highlighting the importance of valid legal documentation.
How Law Tram Helps You Navigate the Process
Contesting a will is emotionally and legally complex — especially when family relationships are already strained. Law Tram simplifies this process by helping you connect with the right legal professional.
We work with licensed Australian lawyers who can:
- Confirm your eligibility to challenge a will
- Advise on legal grounds and strength of your case
- File your application within the required timeframe if you choose to proceed with contesting a will
- Represent you during mediation or court hearings
Want help figuring out your eligibility? Start with our free, confidential questionnaire.
Take the First Step Toward Resolution
Law Tram’s inheritance dispute consultation offers a secure, efficient, and supportive way to connect with expert legal help. Whether you’re a child left out of the will, a financially dependent partner, or someone who suspects undue influence, our platform ensures you receive tailored advice from qualified wills lawyers — with no obligation to proceed unless you’re confident.
If you’re contesting a will, start your free, confidential consultation today. Take the first step toward resolving your inheritance matter with clarity and peace of mind.
Have a question about contesting a will or want to share your experience? Get in touch with us — we value your input.
This article was written by Inna Hall in consultation with licensed Australian estate lawyers participating in the Law Tram network.
Frequently Asked Questions
Yes, if there is evidence that the deceased lacked testamentary capacity due to conditions like dementia at the time the will was made, the will's validity can be challenged. Courts require proof that the testator did not understand the nature of the will, the extent of their assets, or the claims of potential beneficiaries.
Generally, assets held in joint tenancy pass directly to the surviving joint owner and are not part of the estate. However, in some jurisdictions, courts may consider the deceased's share of joint assets when making family provision orders, especially if the estate lacks sufficient assets to fulfil such orders.
Contesting a will after the estate has been distributed is challenging but not impossible. Courts may allow claims if there are exceptional circumstances, such as fraud or if the claimant was unaware of the death. However, recovering assets already distributed can be complex, and success is not guaranteed.
When multiple parties contest a will, the court may consolidate the claims into a single proceeding to ensure consistency and efficiency. Each claimant must establish their eligibility and grounds for the claim. The court will then assess all claims collectively to determine appropriate provisions from the estate.
Yes, if the deceased owned assets in Australia, local laws may apply to those assets regardless of where the will was made. Contesting such a will involves complex jurisdictional issues, and it's advisable to seek legal advice to navigate the applicable laws and procedures.
