Planning for the end of life isn’t something people enjoy, but it matters. A will gives direction about who gets what when someone dies. But things don’t always go to plan. If a family member or loved one feels the will is unfair or invalid, they may choose to challenge it. This is called contesting a will.
Australia has clear laws about this. If you’re facing this situation, knowing your rights is key. Whether you’re preparing for a claim or defending one, this guide will help you understand what’s involved.
At Ignify Legal, we know how hard these matters can be. Our team helps clients handle wills and estate planning with care and confidence. Here’s everything you need to know about contesting a will in Australia.
Understanding Will Contests in Australia
Challenging a will is not about hurt feelings. It’s about legal grounds. Courts won’t change a will just because someone doesn’t like it. You need a strong reason backed by law. Emotions often run high after a death, but the legal system focuses on fairness, not family drama. Claims must be based on recognised legal principles—not assumptions or verbal promises.
You can contest a will in two main ways:
- Challenging the validity of the will
- Making a family provision claim if you feel you were unfairly left out
Let’s look at these two routes:
- Challenging the Will’s Validity
A person can say the will isn’t valid if:
- The person who made it didn’t understand what they were doing
- They were pressured or influenced by someone else
- The will wasn’t signed or witnessed properly
This type of claim usually involves proving the deceased lacked mental capacity or was manipulated. Medical records, witness statements or expert opinions may be used in court. If the claim succeeds, the current will is set aside. In that case, an older version might be used instead—or the estate could be distributed under intestacy laws if there’s no previous valid will.
- Making a Family Provision Claim
This is more common. If you were close to the person who died, and they didn’t leave you enough (or anything), you can ask the court to change the will. You must show that:
- You had a close relationship with the person
- They had a duty to provide for you
- What they left you was not enough
You’ll also need to show that you have financial need or special circumstances. Courts won’t make changes lightly—they’ll look at the size of the estate, your relationship, and the needs of other beneficiaries.
Each state has different rules about who can claim. In most cases, the following can contest:
- Spouse or partner (including de facto)
- Children
- Stepchildren (in some states)
- Former spouses (in certain cases)
- People who were financially dependent
To see when and how a will can be contested under Australian law, it’s important to act fast. Strict time limits apply. In NSW, for example, you usually have just 12 months from the date of death to make a claim. Waiting too long can mean missing your chance entirely.
Grounds for Contesting a Will: Who Has a Right?
Knowing if you have a right to contest is the first step. Courts won’t allow just anyone to make a claim. You need to show a real reason. That reason must fall under recognised legal grounds. Just being upset or feeling left out isn’t enough. The court will look at your relationship with the deceased, your financial situation and whether the will was made properly and fairly.
Here are the main grounds:
Lack of Testamentary Capacity
This means the person didn’t have a clear mind when making the will. Maybe they had dementia or were mentally unwell. They may not have understood what they were signing, what assets they owned or who they were including—or excluding—from the will. To contest on this ground, medical records are key. Testimony from doctors, nurses or carers who saw them around the time of the will’s signing can also help support your claim.
Undue Influence or Pressure
If someone forced or pressured the person to write the will a certain way, that’s not allowed. This could be a carer, child, partner or anyone who had power over them. The court will look at how dependent the person was, what their mental state was like, and whether the person who benefited helped arrange or draft the will. If it looks suspicious, the court may investigate further.
Forgery or Fraud
Sometimes people try to fake a will or trick someone into signing it. If this is proven, the will can be thrown out. These cases are serious and may also lead to criminal charges. Signs of forgery include mismatched handwriting, altered documents or fake witnesses.
Improper Execution
A will must follow strict rules:
- Signed by the person making it
- Signed in front of two witnesses
- Witnesses must not be people who benefit from the will
If these steps weren’t followed, the court may say the will is invalid. Even if the person’s intentions were clear, a poorly executed will can cause legal issues for the entire estate.
Unfair Distribution
If you were financially dependent on the person and they didn’t provide for you, you can claim for a fair share. This is called a family provision claim. Courts take these seriously, especially if your needs are genuine and the estate can afford to help you.
You’ll need to provide:
- Proof of your relationship
- Evidence of financial need
- Records showing the person’s assets and estate
Knowing the steps to take if you’re left out of a will can protect your rights and avoid family breakdown. The sooner you act, the better your chance of a fair outcome.
The Process of Contesting a Will
Contesting a will involves several stages. It’s not a quick or simple process. But with the right support, it can be handled well.
Here’s how the process usually goes:
1. Seek Legal Advice Early
Before you do anything, speak with an estate lawyer. They’ll look at your case and tell you if it’s worth pursuing. They’ll also explain the costs and timeframes.
2. Check Time Limits
Each state has a deadline. Usually, you have:
- 6 months in NSW
- 9 months in VIC
- 6–12 months in other states
Miss the deadline and you may lose the chance to claim.
3. Gather Evidence
To win a case, you need strong proof. Your lawyer will help you collect:
- The will and any previous versions
- Medical records (if contesting capacity)
- Financial records
- Emails, letters, or texts showing your relationship
4. Lodge the Claim
Your lawyer will file a claim with the relevant court. The other parties will be notified.
5. Mediation
Courts prefer that parties try to settle before going to trial. Most disputes are resolved in mediation.
6. Court Hearing
If mediation fails, the case goes to trial. A judge will decide if the will stands or needs changes.
Legal advice is crucial at each step. Some also explore legal tactics for protecting a will from challenge which can prevent future problems.
Executors, Their Role, and Common Disputes
The executor handles the estate. They make sure the will is followed and debts are paid. But things don’t always run smoothly.
Here’s what can go wrong:
Delay in Action
Some executors take too long. This can delay the whole process. Beneficiaries might get upset or feel ignored.
Conflict of Interest
An executor may also be a beneficiary. If they put their needs first, it can cause disputes.
Mismanagement
If the executor sells property at the wrong price or ignores debts, they can be held responsible.
If this happens, you can take action. You might ask the court to:
- Remove the executor
- Appoint a new one
- Force them to pay for any losses
You can read more about what happens when an executor doesn’t carry out the will and what steps are available.
How Courts Decide: What Judges Look At
If a case goes to court, the judge will weigh several factors. It’s not just about whether someone feels upset or excluded.
The court looks at:
- The size of the estate
- Your financial needs
- The strength of your relationship with the deceased
- Any promises or support they gave you during life
- Other people who have a claim
Let’s look at a real example.
Case Study: A Daughter Left Out
Karen was the daughter of a man who passed away. The will left everything to his second wife. Karen received nothing. But she had been his main carer for years.
Karen made a family provision claim. She showed the court she had been financially dependent and had a strong bond with her father. The judge agreed and awarded her part of the estate.
This shows that even if you’re not named in the will, you may still have a right to claim.
Recent updates on how recent court rulings have shaped will disputes reveal how judges are putting fairness front and centre.
Key Trends and the Future of Will Disputes in Australia
Australia is seeing more will disputes than ever before. Why? Families are getting more complex, and property values are rising. When more is at stake—emotionally and financially—there’s a higher chance of disagreement. What used to be a simple transfer of modest assets now often involves large estates, blended families and competing interests. Add in rising legal knowledge and easier access to the courts, and it’s no surprise more people are stepping forward to contest a will.
Here are some trends:
- Blended Families
With more second marriages and stepchildren, things can get tricky. Not everyone agrees on what’s “fair.” A will that gives everything to a second spouse can upset children from a first marriage. If a stepchild was raised as part of the family but not legally adopted, they may not be eligible unless the will includes them. This tension can quickly lead to disputes, especially when assets like the family home are involved.
- Delayed Property Transfers
Sometimes parents keep property in their names until they pass. This makes estate disputes more likely. Children may feel entitled to a property they’ve helped maintain or lived in for years. If the legal title doesn’t reflect informal promises, disagreements often follow.
- Online Wills
Digital wills are growing, but some still don’t follow legal rules. These can be easier to challenge. If not properly signed, witnessed or stored, they may be considered invalid—even if the intentions were clear. Courts are still catching up with this new trend, and the risk of rejection remains high.
- Rising Legal Awareness
People are learning more about their rights. They’re willing to challenge unfair wills, and courts are listening. This means executors and beneficiaries must be prepared for possible objections—even in smaller estates.
What does this mean for the future?
- Lawyers may need to offer more flexible services
- Courts may simplify the process to reduce stress
- Mediation could become the standard step before trial
Estate disputes are emotional. But with planning and legal support, families can avoid fights and protect what matters. Acting early is the best defence against drawn-out legal battles.
Frequently Asked Questions
1) Can I contest a will if I was financially independent?
Yes, you can, but it’s harder. Australian courts tend to favour people who were financially dependent on the person who passed away. That includes spouses, children, or anyone who relied on the deceased for housing, money, or care. If you were independent and earning your own income, the court will take a closer look at why you still need support from the estate.
You must show that the will failed to provide you with what’s fair in your situation. Courts will assess your living costs, health, job stability, debts, and what assets you already have. For example, you might own a house but have a low income and ongoing medical bills. That could strengthen your case. The judge will also look at the size of the estate and how close you were to the deceased. If the estate is large and you had a strong relationship, you could have a solid claim—even if you weren’t dependent.
It’s not just about financial need. Emotional connection, care roles, or past promises can also play a part. Legal advice will help you work out if you have a realistic chance and what evidence you’ll need to show your case is fair and justified.
2) What if the will seems suspicious but I don’t have proof?
Even if you don’t have hard proof, you should still speak to a lawyer. Suspicion alone doesn’t win cases, but it can be a starting point for deeper investigation. Lawyers often spot red flags others miss. For example, they might notice signs of undue influence, mental incapacity, or changes made under odd conditions. They’ll ask the right questions, look at timelines, and collect medical or legal records to build your case.
Sometimes, a will is changed late in life when the person was unwell, isolated, or dependent on someone new. These are moments where people might be pressured or manipulated. In other cases, a person may be cut out completely without reason. That can raise doubts, especially if a long-standing pattern of care or financial support existed.
Even the way a will was signed or witnessed can lead to challenges. If something doesn’t add up, a lawyer might shift the burden to the person defending the will to prove it’s valid. That’s called the “onus of proof,” and it’s a big deal in contested will cases.
If your gut says something’s not right, don’t wait. Get legal help quickly. Time limits apply, and early action gives your lawyer more time to find the truth.
3) Can a stepchild contest a will?
Yes, in some states, a stepchild can contest a will—but it’s not automatic. Whether you qualify depends on where you live, your relationship with the deceased, and how much you depended on them. In New South Wales (NSW), stepchildren can bring a claim if they were treated like a child of the deceased, lived with them, or got regular financial support.
You’ll need to show more than just being married into the family. Courts want proof of a close bond and real support. For example, if your stepfather paid your school fees, helped with rent, or raised you as his own, that strengthens your claim. But if you only had brief contact or were not close, it may not be enough.
Each state has its own rules, and in places like Queensland or Victoria, the law can be stricter. Some don’t allow stepchildren to contest unless adoption happened. This is why legal advice matters. A lawyer can help you gather evidence, work out where you stand, and build a case based on dependency, moral obligation, or past support.
If you’ve been left out and feel it’s unfair, don’t assume you can’t claim. Stepchildren can have legal rights—but proving them takes the right support.
4) Is it expensive to contest a will?
It can be, depending on how complicated the case is and how far it goes. If both sides settle early, the cost might be lower. But if it ends up in court, the bills can climb. You may need to pay for legal advice, court fees, expert reports (like doctors or financial advisors), and mediation. These all add up over time.
Some lawyers offer no-win-no-fee services, but not always. That usually depends on how strong your case is, how big the estate is, and your chance of success. Even with that option, you may still pay for out-of-pocket costs along the way.
If you win, the court might order the estate to cover your legal costs. But there’s no guarantee. If you lose, the court could make you pay the other side’s costs too. That’s why lawyers always recommend getting a solid case review first.
Be clear about costs before you begin. Ask your lawyer for a written estimate and updates along the way. Some will also offer fixed-fee services for parts of the process. Don’t let fear of cost stop you—there are ways to manage it, especially with the right advice from the start.
5) How long does it take to contest a will in Australia?
Most will disputes take between 6 months and 2 years to resolve. How long your case takes depends on several factors. Simple cases where both sides agree early can wrap up in under a year. But if the estate is large, or people disagree strongly, it can drag out.
First, you’ll go through mediation. Courts encourage this to avoid long trials. Mediation can save time and money, and many cases settle at this stage. If you can’t agree, the matter moves to court, which takes longer. Courts have their own calendars and delays. If expert reports are needed, or if people refuse to cooperate, the process can stretch out.
You can help move things along by acting quickly. Gather your documents, respond to requests, and meet every deadline. The faster you prepare, the sooner things move forward. Having a good lawyer also makes a big difference. They’ll manage the process and keep everything on track.
Timing also depends on where you live. Some courts are busier than others, and local procedures can vary. Always check the deadline to lodge your claim—it’s usually 6 to 12 months after probate is granted. Once that window passes, you could lose your right to claim altogether.
Protect Your Rights and Your Future
Contesting a will in Australia isn’t just about money. It’s about fairness. If you feel something isn’t right, the law gives you a voice. With the right steps, you can make sure your rights are protected, and your future is secure.
Wills can cause stress, tension, and grief. But they don’t have to. With smart planning, open conversations, and expert help, you can reduce the chance of fights down the track. As family structures change, and digital tools become more common, the way we handle wills must change too.
If you’re thinking about challenging a will—or worried yours could be challenged—don’t wait. Get clear, honest advice from people who know the law inside out.
Visit Ignify Legal to speak with our team about your situation. We’ll help you take the next step, one you won’t regret.
Please call us today at (02) 9413 4708 or submit an online enquiry.
