Contesting A Will Australia

When a loved one passes away, the distribution of their assets is governed by a will, if one exists. However, not all wills are accepted at face value, and in some instances, there may be grounds to contest them. In Australia, the legal framework for contesting a will is both robust and intricate, providing protections for beneficiaries while ensuring the last wishes of the deceased are respected.

Why Contest a Will in Australia?

Contesting a will is not undertaken lightly. It’s often emotionally charged and can lead to division among family members.

Unfair Distribution

Some family members may feel they have not been adequately provided for or were unfairly excluded.

Undue Influence

Claims may arise suggesting that the will was made under the influence of another individual, manipulating the deceased’s decisions.

Questioning Testamentary Capacity

Doubts about the deceased’s mental capacity at the time of writing the will can provide grounds to contest it.

Procedural Discrepancies

This pertains to issues in how the will was drafted or witnessed, potentially invalidating the document.

Understanding the Process of Contesting a Will


Before contesting a will in Australia, it’s essential to establish if you’re an eligible person. Typically, this includes the deceased’s spouse, children, and sometimes dependents who had a close relationship with the deceased.

Legal Grounds

As mentioned earlier, reasons could be undue influence, lack of testamentary capacity, or procedural discrepancies. In some Australian states, “not being adequately provided for” is also a legitimate ground.

Time Constraints

There is a limited period during which a will can be contested. In many Australian states, you have six months from the grant of probate to file a claim, though this can vary. It’s crucial to act promptly.

Seeking Legal Counsel

Due to the complexities involved, seeking advice from a solicitor with expertise in estate disputes is vital. They can guide you on the viability of your claim and the best approach.

Alternative Dispute Resolution (ADR)

Before going to court, many disputes can be resolved through mediation or other ADR methods, which can be both time-saving and cost-effective.

Court Proceedings

If ADR does not resolve the matter, you may need to proceed to court. This process can be long and emotionally draining, requiring presentation of evidence, potential witnesses, and expert testimonies.

Potential Outcomes

When contesting a will, the court can:

Uphold the Existing Will

In which case, the estate will be distributed as per the original will.

Amend the Will

This is a partial change, often to provide more for the individual contesting.

Invalidate the Will

In rare cases, where the will is found to be entirely invalid (due to fraud, undue influence, or procedural discrepancies), the court might resort to using a previous will or, in the absence of one, the rules of intestacy.

The Role of Executors

Executors play a crucial role in the process. They are responsible for defending the will on behalf of the deceased. They must remain neutral, ensuring the true wishes of the deceased are upheld, even if they personally disagree with the distribution.

Risks Involved

Contesting a will comes with inherent risks:

Legal Costs

Going to court is expensive. If the contest is unsuccessful, the claimant might be ordered to pay the legal costs of both sides.

Emotional Strain

Contesting can strain familial relationships, potentially causing long-lasting rifts.


It can be a long process, sometimes taking years to resolve, which can be emotionally and mentally taxing.


Contesting a will in Australia is a significant decision requiring careful thought and consultation. The legal system aims to balance the deceased’s wishes with the rights of potential beneficiaries, ensuring that justice is served. Anyone considering contesting a will should be aware of the emotional, financial, and time-related costs, seeking expert advice to make informed decisions. Ultimately, it’s about ensuring the deceased’s true intentions are honored while providing a fair outcome for those left behind.