Contesting a will in Australia: who can claim, and by when

Can a will be contested in Australia?

Yes. People often say "contesting a will" for two quite different things, and it helps to keep them apart.

This page explains both for will-makers and families. It isn't a guide to running a case: if you're in a dispute, a lawyer who practises in wills and estates is the right person to talk to.

On what grounds can a will be challenged?

A validity challenge says the document shouldn't be accepted as the person's will. The NSW Supreme Court lists the usual grounds:

• Formal requirements weren't met. For example, the will wasn't signed in front of two witnesses present at the same time. See who can witness a will.
• Lack of testamentary capacity. The will-maker didn't understand what a will is, what they owned, or who might expect to inherit, when they made it.
• Lack of knowledge and approval. The will-maker didn't know and approve what the will actually said.
• Undue influence. Someone pressured the will-maker into terms that weren't really their own wishes. Persuasion or a strong opinion isn't enough.
• Forgery or fraud.

A formal slip isn't always fatal. In NSW and Victoria, and in similar provisions elsewhere, the court can accept a document that wasn't properly signed or witnessed if it's satisfied the person intended it to be their will (Succession Act 2006 (NSW) s 8; Wills Act 1997 (Vic) s 9). That takes a court application, though, which costs the estate time and money. Signing properly avoids it.

What is a family provision claim?

A family provision claim doesn't say the will is invalid. It says the will didn't make adequate provision for someone the law allows to claim, given their needs and their relationship with the person who died. If the court agrees, it orders that they receive more from the estate.

Claims can also be made when someone dies without a will, if the intestacy rules leave an eligible person without adequate provision. See dying without a will.

Who can make a family provision claim?

Every state and territory has its own list of eligible people. Spouses, partners and children can claim everywhere. Beyond that the lists differ, and many categories come with conditions, such as having been dependent on the person who died.

Being eligible doesn't mean a claim will succeed. It means the court can consider it.

What is the time limit to contest a will?

Family provision claims have short, strict time limits. Courts can allow a late claim, but it isn't automatic, and in several states the court can't extend time once the estate has been fully distributed.

Validity challenges work differently. There's no single deadline like the family provision limits, but it's much easier to raise a problem before probate is granted than to have a grant revoked afterwards. If you have doubts about a will, speak to a lawyer as early as you can.

What does the court consider?

The court weighs the claimant's position against the estate and everyone else with a claim on it. In NSW, the Succession Act 2006 s 60(2) lists the matters the court may consider, including:

• The relationship between the claimant and the person who died, and how long it lasted
• The size of the estate (including any notional estate) and its debts
• The claimant's financial resources and needs, now and in the future, and any disability
• The claimant's contributions to the estate or to the person's welfare
• Anything already given to the claimant, during the person's life or from the estate
• Evidence of the will-maker's intentions, including statements they made
• The claimant's character and conduct, before and after the death

Victoria is more direct about the will-maker's own view. The court must consider their will, any evidence of their reasons for making it as they did, and other evidence of their intentions (Administration and Probate Act 1958 (Vic) s 91A). That's why recording your reasons matters.

What is notional estate in NSW?

NSW has a rule most other states don't. Property that isn't in the estate when someone dies can, in limited circumstances, be designated "notional estate" and used to pay a family provision order (Succession Act 2006 (NSW) Pt 3.3, ss 74 to 90). It can catch property that passed outside the will, such as an interest in a jointly owned home or a super payout, and certain gifts made in the years before death. So in NSW, moving assets outside the will doesn't necessarily put them beyond a claim.

How can you reduce the risk of your will being contested?

No will can be made contest-proof. Eligible people can always apply. But a clear, current, properly signed will is much harder to attack, and it gives a court the best picture of what you wanted.

• Make adequate provision for the people the law expects you to consider, especially a partner, young or dependent children, and anyone who relies on you financially.
• Record your reasons if you're leaving someone out or giving them less, in a separate signed statement or letter kept with your will. Stick to facts. A letter of wishes is one way to do it.
• Sign it properly. Follow your state's witnessing rules exactly, so validity is never in question.
• Keep it current. A will that reflects your life now is harder to challenge than one written before a marriage, separation or new child.
• If capacity could be questioned, because of age, illness or memory problems, ask your doctor to assess and record your capacity around the time you sign, and see a lawyer.
• Make the will yourself. A beneficiary shouldn't arrange the will, sit in on your decisions or act as a witness.
• Get legal advice if a claim seems likely, for example if you're leaving out a child, or you have a blended family with competing expectations.

Willies helps with the parts that come down to process. Your will arrives with step-by-step signing instructions for your state, a real person checks every will before it's sent, and the Willies Plan prepares unlimited updates while it's active. The Complete Will is built for blended families and can record that leaving someone out was a deliberate decision. That statement won't stop a claim, but it shows the omission wasn't an oversight.

What should executors and families do?

If you're an executor, find out the claim period in your state before distributing the estate, and get advice if anyone has said they might claim. Executors often hold off distributing until the period has passed.

If you think you've been left out unfairly, check the time limit first, then see a lawyer. Legal Aid and the Public Trustee in each state have plain-English information, and you can read more on our state pages: NSW, Victoria, Queensland, WA, SA, Tasmania, ACT and NT.