Yes, contesting a will in Australia is possible if you are eligible and act within strict time limits. The most common grounds include lack of testamentary capacity, undue influence, or inadequate provision for dependants.
At Law Tram, we simplify the process of connecting Australians with licensed lawyers who regularly handle will disputes. This guide explains who can contest a will, the grounds available, time limits, costs, process, and ways to avoid disputes.
Key Factors to Consider When Contesting a Will
- Who can contest: Spouses, de facto partners, children, stepchildren (in some cases), and financial dependants.
- Grounds: Lack of capacity, undue influence, fraud, improper execution, or inadequate provision.
- Time limits: Strict deadlines apply, usually 6–12 months from probate.
- Costs: Sometimes covered by the estate, but losing can result in personal liability.
- Process: Advice → file claim → mediation → court if unresolved.
- Alternatives: Mediation and negotiation are quicker and less stressful.
Who Can Contest a Will in Australia?
Courts limit eligibility to specific categories:
- Spouses and de facto partners.
- Children, including adults.
- Stepchildren, in some states.
- Former partners with ongoing obligations.
- Financial dependants.
Eligibility rules differ by state. Most claims are made as family provision applications, where the court decides if proper maintenance has been provided. Judges consider the estate’s size, claimant’s financial needs, relationship history, and competing claims.
Grounds for Contesting a WillLack of testamentary capacity
A valid will requires the testator to understand the act of making a will, the property involved, and potential beneficiaries. Conditions such as dementia or severe illness may undermine this capacity.
Undue influence
If a will was made under pressure or coercion, it may not reflect the true intentions of the deceased. Courts require clear evidence of influence that went beyond persuasion.
Inadequate provision
The most common ground. Eligible persons may argue that the will fails to provide reasonable financial support, particularly where they relied on the deceased.
Improper execution or fraud
A will may also be challenged if not properly signed or witnessed, or if fraud or forgery is suspected.
Time Limits for Contesting a Will
Deadlines vary across Australia, generally 6–12 months from probate being granted. Late applications are rarely accepted. To avoid missing out, seek legal advice immediately if you believe you have a claim.
Contesting vs Challenging a Will
Though often used interchangeably, the terms are different:
- Challenging a will questions its validity (e.g. capacity, undue influence, fraud).
- Contesting a will accepts validity but seeks further provision through a family provision claim.
Costs and Risks
Traditionally, costs came from the estate, but courts now expect each party to act reasonably. Losing a claim may mean paying not only your own costs but also the other party’s. Financial risks aside, disputes can delay estate distribution, reduce its value, and strain family relationships. Assessing your claim’s strength with a lawyer early is essential.
The Legal Process
- Seek advice – determine eligibility and gather evidence.
- File claim – lodge in the relevant state or territory court.
- Mediation – most courts require this before trial. Many cases settle here.
- Court hearing – if no settlement, a judge decides the outcome.
Common Family Disputes
- Sibling conflicts: unequal shares or exclusion.
- Blended families: stepchildren claiming provision.
- Dependency issues: carers or financial dependants overlooked.
Courts assess financial need, estate size, and relationship history to reach a fair result.
Alternatives to Court
Mediation and negotiation are encouraged as they reduce costs, preserve relationships, and allow faster resolution. Settling outside court gives families greater control over the outcome.
Preventing Will Disputes
Future disputes can often be avoided through:
- Professionally drafted wills.
- Updating documents after major life events.
- Testamentary trusts or letters of wishes.
- Seeking legal advice during significant relationship or financial changes.
Protect Your Rights With the Right Legal Guidance
Contesting a will is possible in Australia, but strict rules apply around eligibility, time limits, and grounds. While the law provides a pathway for fair provision, it can be costly and stressful without proper guidance.
If you are considering contesting a will, or defending a claim, expert help makes all the difference. Law Tram connects you with licensed Australian lawyers who can explain your options clearly and protect your interests.
Start your confidential consultation today and take the first step towards resolution with clarity and confidence.
