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Learn how to challenge a will in Australia, including grounds, evidence, timelines, and the step-by-step legal process.
Contesting a will — formally known as a family provision claim or estate dispute — is a legal process that allows eligible people to challenge how a deceased person's estate has been distributed. Whether you believe you were unfairly left out, received too little, or suspect the will itself is invalid, Australian law provides pathways to seek a fairer outcome. This guide covers the key legal issues, evidence you'll need, and the steps involved.
Who can contest a will? Eligibility varies by state and territory, but generally includes spouses, de facto partners, children (including adult children), and in some jurisdictions, dependants or grandchildren. Under relevant state succession legislation, you must establish both eligibility and that adequate provision was not made for you from the estate.
Grounds for challenging a will's validity go beyond family provision claims. A will may be challenged if there are concerns about testamentary capacity (whether the deceased had the mental capacity to make a will), undue influence (pressure from another person), or fraud and forgery. These are separate legal actions to a family provision claim and carry a higher burden of proof.
Limitation periods are strict. Most Australian states and territories require a family provision claim to be filed within 12 months of the date of death, though some jurisdictions set shorter windows. Courts can grant extensions in limited circumstances, but acting promptly is critical.
Before filing any claim, confirm whether you are an eligible person under your state or territory's succession laws. Consider whether your claim is a family provision application or a validity challenge — each follows a different legal path. Consulting an estates lawyer at this stage can help clarify your position.
Gather the documents listed above. Request a copy of the will and grant of probate from the executor or the probate registry. Check the limitation period that applies in your jurisdiction and note the deadline carefully.
Many estate disputes are resolved through negotiation or mediation before reaching court. Write to the executor outlining your claim. Mediation is cost-effective and confidential, and courts often expect parties to attempt it before proceeding to a hearing.
If negotiation fails, your lawyer will file a summons or originating application in the relevant state or territory Supreme Court. You'll need to serve the executor and other beneficiaries. The court will then set a timetable for evidence and hearings.
Most courts require a formal mediation before the matter proceeds to a judge. If unresolved, the case proceeds to a contested hearing where the judge considers all evidence and makes a determination on provision.
Yes, being deliberately excluded does not prevent you from making a claim — provided you are an eligible person under the relevant legislation. The court will assess whether adequate provision has been made for your proper maintenance, education, or advancement in life, regardless of the testator's stated intentions.
Timelines vary significantly. A negotiated settlement can be reached within a few months, while a fully contested court hearing may take one to two years. Complexity, the size of the estate, and the number of parties involved all affect duration.
Costs are not automatic. In successful family provision claims, courts often order that the applicant's costs be paid from the estate. However, if a claim is unsuccessful or poorly founded, you may bear your own costs or even pay the other side's costs. Discuss fee arrangements with your lawyer upfront.
Yes, probate does not prevent a family provision claim, provided you are within the limitation period. For validity challenges, acting before the estate is distributed is strongly advisable.
Use ROY's free AI analysis to understand how the law applies to your specific situation.
This article provides general legal information only and does not constitute legal advice for your specific situation. Laws vary by state/territory. Consult a qualified lawyer for advice tailored to your circumstances.
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Vigolo v Bostin — family provision and moral duty
How courts assess adequate provision in family provision claims
The High Court considered how a court assesses whether adequate provision was made for an applicant, addressing the relevance of "moral duty" in family provision claims.
※ Leading Australian precedent — reference only
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* 위 수치는 ROY AI의 유사 사건 분석 기반 추정치입니다. 개별 사건의 결과와 다를 수 있으며, 법률적 조언이나 결과 보장이 아닙니다.
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이 문서는 일반적인 법률 정보 제공 목적으로 작성되었으며, 개별 사건에 대한 법률 자문, 법적 조언, 또는 결과 보장이 아닙니다. 구체적인 법적 사안에 대해서는 반드시 자격을 갖춘 법률 전문가와 상담하시기 바랍니다. ROY Legal Insights는 정보 제공 서비스이며, 법무법인이 아닙니다. 최초 발행일: 2026.04.07.