How to Contest a Will: Process, Eligibility, and Legal Costs Explained

You spent years caring for your mother. You were there through hospital visits, medication schedules, and lonely afternoons. Then the will is read. Your sibling who rarely visited gets the house. You get nothing.

This scenario plays out across Australia every day. Adult children, former partners, and dependents learn they've been excluded or haven't received what they believe is their fair share. The shock turns to anger. Then comes the question: can you actually do something about it?

You can. Queensland law recognises that some people have a legitimate claim to an estate, even when a last will says otherwise. But the process isn't straightforward. You face strict deadlines, legal costs, and potentially years of family conflict. Some claims succeed. Others fail spectacularly, leaving the claimant worse off than before.

This blog walks you through everything you need to know about contesting a will in Queensland. You'll learn who can make a claim, what grounds actually hold up in court, and what financial reality you're facing if you proceed.



Two Ways to Challenge a Will: Understanding the Difference

Before we go further, you need to understand there are two completely different ways to challenge a will in Queensland:



1. Family Provision Claims (Inadequate Provision)

You accept the will is valid, but you argue it doesn't adequately provide for your maintenance and support needs. This is by far the most common type of challenge.

Example: Your father's will is legally valid, but it leaves everything to your brother while you get nothing, despite you being financially dependent on your father.

2. Validity Challenges

You argue the will itself shouldn't stand because something was fundamentally wrong when it was made.

Example: Your mother had advanced dementia when she signed her will, or someone forged her signature.

These are separate legal processes with different:

• Eligibility requirements
• Time limits
• Costs
• Court procedures
• Potential outcomes

This blog covers both, but we'll make clear which type we're discussing in each section.



Grounds for Contesting a Will

You need a valid legal reason to contest a will. Simply feeling upset about the outcome isn't enough.



Grounds for Family Provision Claims

Inadequate Provision

The most common reason for challenging a will is inadequate provision. You must demonstrate that:

• You're an eligible person under Queensland law (see below)
• The deceased had a moral obligation to provide for you
• The will fails to make adequate provision for your proper maintenance and support

The court looks at your financial circumstances, your relationship with the deceased, the size of the estate, and competing claims from other beneficiaries.



Grounds for Validity Challenges

These challenge whether the will should be recognised as valid at all.



Lack of Testamentary Capacity

The will maker didn't have the mental capacity to understand what they were doing. Evidence can include medical records showing conditions like dementia.

The person must have understood:

• What a will is
• What property they owned
• Who might reasonably expect to benefit from their estate
• How these factors relate to each other



Undue Influence

Someone pressured or manipulated the deceased into changing their will. The influence must be so strong that it overpowered the deceased's free will. This is difficult to prove and requires substantial evidence.



Fraud or Forgery

The document was tampered with or signatures were forged. This requires strong evidence like forensic analysis or witness testimony.



Eligibility to Contest a Will

For Family Provision Claims

Not everyone can make a family provision claim in Queensland. To challenge a will on inadequate provision grounds, you must be an 'eligible person' as defined by the Succession Act 1981.

Eligible persons include:

• The deceased's spouse or de facto partner
• Children of the deceased (including adopted children)
• Stepchildren (provided the deceased was still married to, or in a de facto relationship of at least 2 years with, the stepchild's natural parent at the time of death)
• Parents
• Grandchildren (if financially dependent)
• People who were financially dependent on the deceased

You may need to provide evidence of your relationship with the deceased and your financial situation to support your claim.



For Validity Challenges

Eligibility is broader for validity challenges. Anyone with a legitimate interest in the estate can challenge a will's validity, including:

• Beneficiaries under an earlier will
• Beneficiaries under the current will (who believe it's invalid)
• Executors
• Anyone who would inherit if there was no will (intestacy)

You don't need to be an "eligible person" to challenge validity. However, you do need standing (a genuine interest in the outcome).



State-by-State Comparison for Family Provision Claims

The laws regarding who can make family provision claims differ across Australian states and territories.



Queensland:

• Spouse or de facto partner
• Children (including adopted children)
• Each stepchild (as long as the step-relationship hasn't ended)
• Parents
• Grandchildren (if financially dependent)
• People who were financially dependent on the deceased

New South Wales:

• Similar to Queensland but stepchildren must prove they were dependent on the deceased and were members of the deceased's household
• Also includes people in a "close personal relationship" with the deceased

Victoria:

• Stepchildren can only claim if they're under 18, students under 25, or have a disability
• Adult stepchildren must show significant financial difficulty
• Parents must have been dependent on the deceased

Key Differences:

Stepchildren: Queensland treats stepchildren similarly to biological children. Victoria restricts claims to younger or dependent stepchildren. New South Wales requires proof of both dependency and household membership.

Parents: Can claim more easily in Queensland than in most other states, where they typically need to prove dependency.



Time Limits for Contesting a Will

Time limits are strict in Queensland. Missing these deadlines can cost you the right to make a claim.



Time Limits for Family Provision Claims

In Queensland:

• 9 months from the date of death to file your claim with the court
• 6 months from the date of death to notify the executor of your intended claim

Failure to meet these deadlines can result in losing the right to claim. You must commence legal proceedings within these timeframes, though the court may grant extensions in exceptional circumstances. You shouldn't rely on obtaining an extension.



Time Limits for Validity Challenges

Validity challenges work differently from family provision claims:

• There is no specific statutory deadline for challenging validity
• However, challenges must be raised before probate is granted (ideally)
• File a caveat (Form 104) with the Supreme Court to prevent probate being issued while you investigate
• Caveats last 6 months but can be extended
• Critical: Once assets are distributed (which can happen 6 months after death), challenging becomes extremely difficult or impossible
• Act immediately if you suspect lack of capacity, undue influence, fraud, or improper execution

For comparison across Australia (Family Provision Claims):

• New South Wales and ACT: 12 months from date of death
• Victoria: 6 months from grant of probate
• Western Australia: 6 months from grant of probate
• Northern Territory: 12 months from date of probate

Can You Contest After Probate?

The answer depends on which type of challenge:

• For family provision claims: Yes, you can proceed after probate is granted. You must still meet the 9-month deadline from the date of death, but probate doesn't prevent you from filing.
• For validity challenges: This is much more difficult. Validity challenges should ideally be brought BEFORE probate is granted by filing a caveat. Once probate is granted and assets are distributed, your opportunity to challenge may be lost. If you have concerns about validity, act immediately—don't wait for probate.



The executor can begin distributing assets 6 months after death if they haven't received notice of any claims. This is why early action is critical for all types of challenges.

The Probate Process

Understanding probate helps you know when and how to challenge a will.



What Is Probate?

Probate is the legal process of validating a will. The court confirms the will is legal and the executor has the right to distribute the estate. Once granted, probate gives the executor authority to manage and distribute the deceased's estate according to the will.



Starting the Contest Process

If you want to dispute a will, you must have sufficient evidence to support your claim. Gathering evidence for contesting a will includes compiling medical records, financial records, witness statements, and any proof of undue influence or capacity issues.

The process typically follows these steps:

1. Seek Legal Advice: It is advisable to contact a will dispute lawyer before commencing legal proceedings to contest a will.
2. Notify the Executor: Let the executor know about your intention to contest within the required timeframe.
3. Attempt Mediation: Most disputes over wills are settled by negotiation or mediation before going to court. A mediation session is often mandated to resolve will disputes before proceeding to a court trial.
4. Lodge Court Application: If you decide to contest a will, you need to lodge an application with the Supreme Court of Queensland within the timeframe required.
5. Court Trial: If mediation fails, a judge will hear evidence from all interested parties in a court trial to make a final decision.



What Happens If You Win?

The outcome depends on which type of challenge you brought:

If you win a family provision claim: The court may grant a family provision order that provides further provision from the estate and changes how assets are distributed. The court will consider adequate provision for your maintenance and support needs, along with the claims of other beneficiaries and the overall size of the estate.

If you win a validity challenge: The challenged will is declared invalid. What happens next depends on the circumstances:

• If there's an earlier valid will, that will takes effect
• If there's no earlier will, the estate is distributed according to intestacy rules (set by law)
• If only part of the will is invalid, the rest may still stand



Legal Costs of Contesting a Will

Challenging a will can be expensive and time-consuming, with legal costs potentially equalling the inheritance amount. Understanding the financial commitment is crucial before you begin.



How Much Does It Cost?

Legal expenses for contesting a will can vary greatly depending on the complexity of the case and the lawyers involved. Legal costs in challenging a will can be significant and vary depending on the complexity of the case.

Costs can include:

• Solicitor fees
• Barrister fees (if the case goes to court)
• Court filing fees
• Expert witness fees
• Mediation costs



Who Pays the Legal Costs?

The question of who pays can be complicated. In most cases, the claimant's legal costs are paid out of the estate if their claim is successful.

However, if you lose a contest, you may be ordered to pay the estate's costs as well as your own legal fees. This can result in significant financial burden.



No-Win, No-Fee Arrangements

Some lawyers offer a 'no-win, no-fee' arrangement for challenging a will, meaning you won't pay unless you win your case. This can make the process more accessible, but make sure you understand all terms and conditions before agreeing.



Cost Differences Between Claim Types

Family provision claims can sometimes be more predictable in cost, as many settle through mediation. Validity challenges, especially those involving fraud allegations, often require expensive expert evidence (forensic handwriting analysis, medical experts) and are more likely to go to trial. This can make validity challenges significantly more expensive.



How Successful Are People at Contesting a Will?

Success rates vary depending on the strength of your case and evidence. Courts assess whether adequate provision was made based on your financial circumstances and relationship with the deceased. Many cases settle through mediation rather than going to trial. This means parties reach an agreement without a judge making the final decision.

Family provision claims have relatively good success rates when the claimant has a strong case showing genuine financial need and inadequate provision. Many settle before trial.

Validity challenges are harder to win. Courts presume a will is valid unless proven otherwise. Challenges based on lack of capacity or undue influence require compelling evidence, often from medical experts or witnesses to the deceased's state of mind. Fraud allegations need particularly strong proof.

Cases with strong evidence of inadequate provision and clear financial need tend to be more successful. Medical evidence, financial records, and witness statements can strengthen your claim. The court examines all circumstances surrounding your relationship with the deceased and your current financial position.



How to Deal with Siblings Fighting Over Inheritance

Family disputes over inheritance are common and emotionally challenging, especially when they occur immediately after losing a loved one. Challenging a will can lead to emotional stress and conflict among family members, especially if the outcome affects their inheritance.



Managing Conflict with Family Members

Emotional conflicts can arise between siblings and other family members when a will is contested, especially if some feel they were unfairly left out. The process of disputing a will can lead to increased tension and conflict within families, particularly if the outcome favours one party over another.



Here are some ways to manage the situation:

• Consider Mediation First: Mediation provides a neutral space to discuss concerns and reach compromises. It's often faster and cheaper than court proceedings.
• Communicate Openly: Try to understand each sibling's perspective. Financial motivations often play a significant role in the decision to challenge a will, particularly if individuals feel inadequately provided for.
• Focus on Facts: Base discussions on legal grounds and evidence rather than emotions alone.
• Seek Professional Help: A family therapist or counsellor can help navigate emotional aspects while lawyers handle legal matters.
• Think Long-Term: Consider whether the financial gain is worth potentially damaging family relationships permanently. Disputing a will can be an emotionally charged process that may lead to long-lasting family rifts.

How to Stop a Sibling Contesting a Will

If you're an executor or beneficiary worried about a sibling contesting the will, there are steps you can take.



Preventive Measures

• Act Quickly: Process probate and distribute assets within legal timeframes. However, be aware that siblings still have the statutory time limits to make claims.
• Communicate Clearly: Sometimes disputes arise from misunderstandings. Clear communication about the deceased's wishes can help.
• Seek Legal Advice: Get guidance from a solicitor experienced in estate disputes. They can advise on the strength of any potential claim.
• Consider Settlement: If a claim appears to have merit, early settlement through negotiation might be less costly than fighting in court.

Understanding Their Rights

Remember that eligible persons have legal rights to contest if they believe they've been inadequately provided for. You cannot simply prevent someone from exercising their legal rights. However, if their claim lacks merit or they miss deadlines, their ability to succeed diminishes.



Takeaway

Challenging a will in Queensland requires meeting specific eligibility criteria, having valid grounds, and acting within strict timeframes. The process can be emotionally and financially demanding, but it exists to protect those who were genuinely dependent on the deceased.

Before proceeding, carefully consider:

• Your eligibility and grounds for contesting
• The strength of your evidence
• The financial and emotional costs
• The potential impact on family relationships
• Whether mediation might achieve a fair outcome

If you believe you have been inadequately provided for in a will, you can apply to the court for further provision from the estate. Or you can seek advice from a solicitor specialising in estate disputes as early as possible.

At Airlie Legal, we specialise in guiding clients through will disputes with the right amount of care and expertise. Our fees are only payable if an agreement is reached or a court order is made, with costs paid from the estate. Contact us today to discuss your situation and understand your options when contesting a will.