Can You Contest a Will, and How Does It Work?

Detailed Explanation

Finding out what a will says can be a shock, especially when someone close was left out or the gifts don't match what the person said while they were alive. Most legal systems do let people challenge a will, but only on specific grounds and usually within tight deadlines. This page explains how will disputes work in general and how the approach differs between countries. For the wider picture of estate administration, see the Wills, Probate & Estates hub.

Two different kinds of challenge

People say "contesting a will" to mean two quite different claims, and it helps to know which one is in play.

A challenge to validity argues the will shouldn't stand at all. If it succeeds, an earlier valid will applies instead, or, if there isn't one, the estate passes under the intestacy rules as though there were no will. Common grounds include:

• Improper signing or witnessing. Most legal systems set formal requirements. In England and Wales, for example, the Wills Act 1837 requires a will to be in writing and signed in the presence of two witnesses who are there at the same time.
• Lack of capacity. The person didn't understand what they were signing, what they owned, or who might reasonably expect to benefit, often because of dementia or serious illness.
• Undue influence or coercion. Someone pressured the person into making the will so that it reflected the pressurer's wishes rather than their own.
• Lack of knowledge and approval. The person didn't know or approve of what the will actually said.
• Fraud, forgery, or revocation. The document is fake, or it was replaced by a later will.

Validity challenges tend to be hard to prove. Courts generally start from the assumption that a properly signed and witnessed will is valid, and the evidence often relies on medical records and witnesses' memories of events years earlier.

A claim for provision accepts that the will is valid but asks the court to change the distribution because an eligible person was left without adequate provision. Australia and England and Wales both allow this kind of claim, and it is the more common dispute in those countries. Many US states have no general equivalent, as explained below.

Who can bring a claim

For a validity challenge, the challenger generally needs a real interest in the outcome: someone who would receive more if the will were set aside, such as a beneficiary under an earlier will or a relative who would inherit under intestacy.

For a provision claim, the law sets out who qualifies. In England and Wales, the Inheritance (Provision for Family and Dependants) Act 1975 lists a spouse or civil partner, a former spouse or civil partner who hasn't remarried, a person who lived with the deceased as a couple for the two years before the death, a child, a person treated as a child of the family, and anyone who was being financially maintained by the deceased. Each Australian state and territory has its own list, which is broadly similar but differs in the detail.

Being upset, or being left less than a sibling, doesn't by itself create a claim. The court weighs things such as the size of the estate, the claimant's financial needs and resources, the needs of the other beneficiaries, and the relationship with the person who died.

Time limits are short

Deadlines are usually measured in months, and they are the most common way genuine claims are lost. Some examples:

• England and Wales: a provision claim must be made within six months of the grant of probate or letters of administration, unless the court gives permission to apply later.
• Victoria, Australia: a family provision claim must be made within six months of the grant. Other Australian states set their own limits, and they don't all start from the same point.
• California: a petition to revoke the probate of a will generally has to be filed within 120 days of the will being admitted to probate.

Courts can sometimes allow a late claim, but they don't have to, so it isn't something to rely on.

What the process usually looks like

Most disputes follow a similar pattern, whatever the country:

1. Early legal advice. Will disputes are one of the areas where general information genuinely isn't enough. The deadlines, eligibility rules and evidence are technical, so it's worth getting advice from a lawyer who handles estate disputes before taking any step.
2. Stopping or pausing the estate. The executor is usually told a claim is coming, which normally stops the estate being distributed. In England and Wales, someone with concerns about validity can enter a caveat, which stops a grant of probate being issued for six months and can be extended.
3. Negotiation or mediation. A large share of will disputes settle without a full hearing, often at mediation.
4. A court decision if the parties can't agree.

How the rules differ between countries

Will disputes are one area where the law really does differ from place to place, so rules from one country shouldn't be assumed to apply in another.

• Australia gives courts broad power to change a will through family provision claims, and eligibility can extend beyond spouses and children to some dependants, grandchildren and household members depending on the state. Adult children can and do bring claims.
• England and Wales also has family provision claims under the 1975 Act, and alongside these, validity challenges based on the Wills Act formalities, capacity and undue influence.
• Scotland works differently again. It has no family provision claim of the English kind. Instead, a surviving spouse or civil partner and children have fixed "legal rights" to part of the estate that a will can't take away.
• The United States has no single rule, because wills and probate are governed by state law. Most will contests are validity challenges brought in the state probate court. Rather than a general family provision claim, most states protect a surviving spouse through an elective share or community property rules. In New York, for example, a surviving spouse can generally elect to take the greater of $50,000 or one-third of the net estate instead of what the will gives them. Deadlines and procedures vary by state.

In estates with property in more than one country or state, more than one set of rules can apply. That's a situation where specialist advice is worth getting early.

How it works where you are

• In Australia: How do you contest a will in Australia? covers family provision claims, who is eligible in each state, the process and time limits.

Things to Consider

• Find out which kind of claim fits. A validity challenge and a provision claim need different evidence and have different eligibility rules. Some cases involve both.
• The clock may already be running. In many places the deadline runs from the grant of probate or administration, which can come sooner than families expect.
• Keep the evidence. Old wills, letters, medical records, and notes of conversations about the person's wishes can matter a great deal later.
• Weigh the cost against the estate. In a small estate, legal costs can eat into what everyone receives, including the claimant.
• Consider the family relationships. A dispute adds strain to grief that is already there. Mediation can resolve a claim with less damage than a hearing, and some families use a counsellor alongside legal advice.
• Grief doesn't wait for the paperwork. An estate dispute can run for months. Some families set up an online memorial so everyone, whichever side of the dispute they are on, has one place to share memories of the person.

Common Mistakes

• Waiting to see how things settle. Families often hold off out of politeness or hope, then find the time limit has passed.
• Assuming "unfair" means "invalid". Unequal gifts are usually legal. Only recognised grounds, or a qualifying provision claim, give a court power to step in.
• Assuming another country's rules apply. Much of what people read online about contesting wills is written for one country or state. Australian family provision rules, English law, Scottish legal rights and US state law all work differently.
• The executor distributing the estate after hearing a claim is coming. Executors who pay out early can face personal liability if a claim later succeeds. See what an executor does for how this duty works in Australia.
• Confusing a will dispute with a dispute over the funeral. Arguments about the funeral or where someone is buried usually fall under different rules from the will itself.