How Do You Contest a Will in Australia?

Detailed Explanation

A will being legally valid doesn't always mean the court will let it stand exactly as written. In every Australian state and territory, an eligible person left with inadequate provision can ask the court to intervene. This is what's commonly (if loosely) called "contesting a will." See the Wills, Probate & Estates hub for how this fits alongside the rest of estate administration.

Family provision claims, not a will "veto"

The formal name for most will disputes is a family provision claim. It doesn't argue the will is fake or improperly made: it accepts the will (or the intestacy formula, if there was no will) as the starting point, then asks the court to order further provision from the estate because what the claimant actually received doesn't adequately provide for their maintenance and support. This is a separate legal question from whether the will is valid. See the FAQ above for how that distinct claim works.

Who is eligible to claim

Eligibility is set by each state's own succession legislation, so the exact list varies, but the broad pattern nationwide includes:

• A spouse or de facto partner (including same-sex partners) of the person who died.
• A child of the person who died, including adult children: Australia does not limit family provision claims to minors.
• Former spouses in some states, in defined circumstances.
• A person who was wholly or partly dependent on the deceased, or who lived in a close personal or household relationship with them, in several states: this can extend to grandchildren, stepchildren, or other dependants depending on the state.

Not everyone who feels hard done by qualifies: a friend, a distant relative, or an estranged party outside these categories generally cannot bring a claim, regardless of how the relationship ended. See what happens if someone dies without a will for how a related but distinct issue (a de facto partner's standing under intestacy) is assessed, since the eligibility questions overlap.

The general process

1. Get advice early. Because time limits are strict (see below) and eligibility is legally technical, speaking to a solicitor experienced in succession law before doing anything else is worth it here specifically. This is one of the situations where general information can't safely replace advice tailored to the facts.
2. Notify the executor. The executor is usually told a claim is being considered, which in most states pauses distribution of the estate until the claim is resolved or the time limit passes.
3. Attempt mediation. Most states require or strongly encourage mediation before a court hearing. Many family provision disputes settle at this stage rather than going the full distance.
4. Court determination, if unresolved. If mediation fails, the court hears evidence about the estate's size, the claimant's financial position and needs, competing beneficiaries' claims, and the nature of the claimant's relationship with the person who died, then decides whether (and how much) further provision is warranted.

Time limits are strict and short

Every state imposes a time limit to bring a family provision claim, commonly measured in a small number of months from the grant of probate or letters of administration, not from the date of death. Courts can occasionally extend the limit in genuine circumstances, but this isn't guaranteed and is entirely at the court's discretion. Because the limit is tied to the grant, not the death, check the current limit in the relevant state's succession legislation (or with a solicitor) as soon as a claim is being considered. Waiting to "see how things settle down" is one of the most common ways a genuine claim is lost.

Things to Consider

• This is general information, not legal advice. Family provision law is technical, time-limited, and genuinely fact-specific. Get advice from a solicitor experienced in succession law before deciding whether, or how, to bring or defend a claim.
• Mediation resolves most claims. Court hearings are the exception, not the rule; going in expecting a negotiated outcome is usually more realistic than expecting a courtroom win.
• A claim can strain family relationships further, on top of grief already in progress. Some families find a mediator or family counsellor useful alongside legal advice, not instead of it.
• The estate pays legal costs in many cases, win or lose, which is part of why claims are taken seriously by executors even when they seem likely to fail, though costs rules vary by state and by outcome, so get specific advice rather than assuming either way.
• Time limits run from the grant, not the death. Confirm the current limit in the relevant state as early as possible if a claim is being considered.

Common Mistakes

• Confusing "contesting a will" with challenging its validity. They're different legal claims with different evidence and eligibility rules. See the FAQ above.
• Assuming feeling unfairly treated is enough. The court looks at financial need and adequacy of provision, not fairness in the abstract: a wealthy claimant who received less than a sibling doesn't automatically succeed just because the split feels unequal.
• Missing the time limit by waiting to see how the family sorts things out informally first. Get advice on the applicable limit immediately if a claim is being considered.
• Assuming only children or a spouse can claim. Depending on the state, a broader group of dependants may be eligible. Check rather than assuming ineligibility.
• Distributing the estate too early. Executors who distribute before the claim period has run (or after being notified a claim is likely) risk personal liability; see what does an executor do for the broader duty this sits within.