Australia

Contesting a will and family provision claims in Australia

A plain-English guide to contesting a will in Australia, covering family provision claims by eligible persons, challenges to the validity of a will, probate caveats, the time limits in each state and territory, and how these disputes are usually resolved.

Checked against official sources on 8 Nov 2026. General information, not legal advice. No lawyer or solicitor has reviewed this page.

Overview

When someone dies, the people left behind do not always agree that the will reflects what should have happened. A child may have been left out entirely. A second spouse and the children of a first marriage may each believe the estate is theirs. A family member may suspect that a new will, signed weeks before death, was not really the deceased person's own decision. Australian law recognises all of these situations, but it deals with them through two very different kinds of case, and getting the difference right at the start matters a great deal.

The first kind of case is a family provision claim, sometimes called contesting a will. Here nobody says the will is invalid. The applicant accepts that the will is genuine but asks the court, usually the Supreme Court, to order that more be paid to them out of the estate because adequate provision has not been made for their proper maintenance, education or advancement in life. Only people who fall within a defined class of eligible persons can bring this kind of claim, and each state and territory sets its own list and its own deadline. The second kind of case is a challenge to the validity of the will itself, on grounds such as lack of testamentary capacity, lack of knowledge and approval, undue influence, fraud, forgery, or the existence of a later will. If a validity challenge succeeds, the will is set aside and an earlier will, or the intestacy rules, applies instead.

There is no single national contested wills statute. Succession law is state and territory law, so the Act that governs your claim, the class of people who may bring it, the deadline and even the court list that manages the file all depend on where the deceased person lived and where their assets are. New South Wales alone allows the court to claw back certain assets that passed outside the estate through its notional estate rules. Queensland has an unusual two-step notice and filing timetable. Tasmania's deadline is the shortest in the country. South Australia replaced its family provision Act entirely on 1 January 2025. The state pages linked from this hub set out each regime in detail. This page explains the shared framework, the practical shape of these disputes, and the usual first steps. It is general information only and is not legal advice.

Common situations

I was left out of my parent's will completely and I do not know whether I can do anything about it
My father remarried late in life and his new spouse has inherited everything
I was promised the family farm for years and the will gives it to someone else
A new will was signed while my mother had dementia and it changed everything
My sibling moved in with our parent, took over the finances, and then a new will appeared
I am the executor and a claim has been made against the estate I am administering
I want to stop probate being granted until the validity of the will is looked at properly
I was my partner's carer for years but we never married and the will does not mention me
The will is ambiguous and the executor and beneficiaries cannot agree what it means
The executor will not communicate, will not account, and has not distributed anything in two years
I received a notice from an estate lawyer telling me a family provision claim has been filed
My grandchild lived with my late daughter and was supported by her, and now there is nothing

Federal legislationShow

Superannuation Industry (Supervision) Act 1993 (Cth)
Commonwealth law governing superannuation funds and the payment of death benefits. Superannuation is usually not an estate asset, so a death benefit may be paid by the trustee to a dependant rather than under the will, and it is dealt with through the fund's internal process and the Australian Financial Complaints Authority rather than by a family provision claim. New South Wales is the exception: a death benefit paid to someone outside the estate can in some circumstances be designated as notional estate, because a person's membership of a super fund can be the basis of a relevant property transaction under section 76 of the Succession Act 2006 (NSW).
Family Law Act 1975 (Cth)
Relevant at the edges of estate disputes. If a separated married couple started property settlement proceedings and one of them dies before the proceedings finish, the proceedings can be continued by or against the estate (section 79AA(8)). Family law agreements, orders and proceedings can also affect whether a former spouse is an eligible person: in South Australia a former partner cannot claim if a prescribed property agreement or order was in force at the death, and in Victoria a former partner is eligible only if the death has stopped them starting or finishing proceedings they could have brought under this Act.

Courts and bodiesShow

Australian Financial Complaints Authority
Hears complaints about superannuation death benefit decisions made by fund trustees. This is the usual path where the argument is about who should receive super, rather than about the will.
High Court of Australia
Final appellate court. Its decisions on testamentary capacity, undue influence and the principles governing family provision bind every state and territory Supreme Court.
Australasian Legal Information Institute (AustLII)
Free public access to the succession legislation of every Australian jurisdiction and to the reported and unreported judgments that show how courts apply it.

How it worksShow

What is the difference between contesting a will and challenging a will?

These two phrases are used loosely in everyday speech but they describe different cases. Contesting a will normally means a family provision claim: you accept the will is valid, but ask the court to order provision or further provision for you out of the estate. The court is not asking whether the will was properly made; it is asking whether adequate provision was made for your proper maintenance, education or advancement in life, and if not, what provision should be made now. Challenging a will means attacking the document itself, usually in probate proceedings, on grounds such as lack of testamentary capacity, lack of knowledge and approval, undue influence, fraud or forgery, informal execution, or the discovery of a later will. The two can run together in the one proceeding, and courts increasingly case manage them jointly to avoid duplicated evidence and duplicated costs, but they involve different evidence, different parties and different remedies.

Who can make a family provision claim in Australia?

Every jurisdiction restricts family provision claims to a defined class. Spouses, de facto and domestic partners and children are eligible everywhere. Beyond that the lists diverge sharply. New South Wales extends eligibility to former spouses, people in a close personal relationship with the deceased, and grandchildren or members of the household who were at some time dependent on the deceased. Victoria has a detailed set of categories in Part IV of its Act, several of which require dependency. Queensland limits claims to spouses (which can include a dependent former spouse), children (including stepchildren and adopted children) and three kinds of dependant who were wholly or substantially maintained by the deceased: a parent, the parent of the deceased's child under 18, or a person under 18. Western Australia, the Australian Capital Territory and the Northern Territory add grandchildren, stepchildren and parents, with conditions on grandchildren and stepchildren everywhere and on parents in the two territories. South Australia's Succession Act 2023 recasts the list and adds conditions for stepchildren, former partners, grandchildren, parents and siblings. Tasmania is narrower again: no grandchildren, former partners only if they were receiving or entitled to maintenance, and parents only where the deceased left no spouse and no children. Eligibility is the first question in every case, and it is decided by the law of the jurisdiction, not by how close the relationship felt.

How do the courts decide a family provision claim?

The reasoning is broadly the same across the country even though the statutory words differ. The court first asks whether the applicant is an eligible person and, in some categories in some states, whether there are factors warranting the making of the application. It then asks whether adequate provision for the applicant's proper maintenance, education or advancement in life was made by the will or by the intestacy rules. That is judged by community standards, not by what the family thinks is fair. If provision was inadequate, the court decides what provision should be made now, having regard to the size of the estate, the applicant's financial position, age, health and earning capacity, the nature and length of the relationship, any contributions made to the deceased's property or welfare, the competing claims of other beneficiaries, and any statement the deceased left explaining their reasons. South Australia now expressly makes the deceased person's wishes the primary consideration. Adult children are not automatically entitled to anything, and a strong moral claim does not help if the estate is small.

What time limits apply and can they be extended?

Time limits are short and they are not uniform. In New South Wales an application must be made within 12 months of the date of death. In Victoria, Western Australia, South Australia and the Australian Capital Territory the period runs from the grant of representation (in Western Australia, from the date the administrator becomes entitled to administer the estate there), and in each of those places it is six months. Queensland works differently again: the proceeding must be started within nine months of the death unless the court directs otherwise, and written notice of an intended claim given to the personal representative within six months of the death stops them from safely distributing the estate before the nine months are up. Tasmania allows only three months from the grant, the shortest period in the country. The Northern Territory allows 12 months from the grant. Every jurisdiction gives the court a discretion to extend time, but an extension is never guaranteed, and in Victoria, South Australia, Tasmania, the ACT and the Northern Territory an extension must be sought before the estate is finally distributed. Delay is most dangerous once the estate has been distributed, because the court cannot easily unwind distributions properly made by a personal representative who had no notice of the claim.

How are estate disputes usually resolved?

Many contested estates are resolved without a trial. Courts case manage these proceedings closely and push the parties towards mediation early. The New South Wales Supreme Court runs a dedicated Probate and Family Provision List under Practice Note SC Eq 7, which requires detailed disclosure of the estate and of the parties' financial circumstances and refers every family provision application to mediation at the earliest practicable time unless the court orders otherwise, usually a court-annexed mediation at no cost for the mediator or venue. Victoria's Testators Family Maintenance List practice note says that generally all applications are referred to mediation. Queensland's practice direction lists a family provision application for a first directions hearing within 28 days of filing and, where appropriate, refers it to mediation at the earliest practical time. Settlements are often a lump sum paid out of the estate plus an agreed costs outcome, documented in consent orders or a deed of settlement, approved by the court where a party is a child or lacks capacity. Settlement is usually far cheaper and quicker than judgment, and it keeps the family's private financial affairs out of a public judgment.

Who pays the legal costs of an estate dispute?

The old assumption that the estate pays everyone's costs is out of date. Costs are in the court's discretion. An executor who defends the estate reasonably will usually be indemnified out of the estate. A successful applicant will often receive their costs from the estate, but an applicant who fails, or who pursues a claim out of all proportion to the size of the estate, can be ordered to pay the executor's costs personally. Courts have become explicit that estate resources must not be consumed by the litigation: the New South Wales practice note allows the court to cap recoverable costs, including in cases where the net distributable estate is less than one million dollars. Because the estate ultimately funds most of the costs on both sides, running a modest claim to trial can leave everyone worse off than an early settlement would have.

State and territory guides

Family provision and probate are state and territory law, so almost every practical detail changes at the border. The governing Acts differ: Succession Act 2006 (NSW) Chapter 3, Administration and Probate Act 1958 (Vic) Part IV, Succession Act 1981 (Qld) Part 4, Family Provision Act 1972 (WA), Succession Act 2023 (SA) which replaced the Inheritance (Family Provision) Act 1972 from 1 January 2025, Testator's Family Maintenance Act 1912 (Tas), Family Provision Act 1969 (ACT) and Family Provision Act 1970 (NT). The class of eligible persons differs, the deadline differs and its starting point differs (death in NSW and Queensland, and the grant of representation everywhere else, or in Western Australia the date the administrator becomes entitled to administer the estate there), and only New South Wales has notional estate powers that let the court reach assets that never formed part of the estate. Court practice differs too: Victoria and New South Wales run dedicated specialist lists, and Queensland runs a Wills and Estates List in Brisbane, with a practice direction that applies to family provision applications filed anywhere in the state. Use the state page for the jurisdiction where the deceased person lived and held assets.

Contested Wills in Australian Capital Territory
How to contest a will in the Australian Capital Territory under the Family Provision Act 1969, including who is eligible to apply, the six month deadline that runs from the grant of administration, the ACT Supreme Court probate process, caveats, mediation and costs.
Contested Wills in New South Wales
How to contest or challenge a will in New South Wales, including who is an eligible person under Chapter 3 of the Succession Act 2006, the 12 month time limit from death, the Supreme Court's Probate and Family Provision List, notional estate orders and costs.
Contested Wills in Northern Territory
How to contest a will in the Northern Territory under the Family Provision Act 1970, including who is entitled to apply, the 12 month deadline that runs from the grant of administration, the Supreme Court of the Northern Territory probate process, caveats and costs.
Contested Wills in Queensland
How to contest a will in Queensland, including who is an eligible applicant under Part 4 of the Succession Act 1981, the six month notice to the personal representative and the nine month deadline to start proceedings, which court to file in, the Supreme Court's practice direction, mediation and costs.
Contested Wills in South Australia
How to contest a will in South Australia under the Succession Act 2023, which replaced the Inheritance (Family Provision) Act 1972 from 1 January 2025, including who is entitled to claim, the six month deadline from the grant, the new emphasis on the deceased person's wishes, and the Supreme Court process.
Contested Wills in Tasmania
How to contest a will in Tasmania under the Testator's Family Maintenance Act 1912, including the three month deadline that runs from the grant of probate or letters of administration, who can claim, probate caveats in the Supreme Court of Tasmania, and how costs are dealt with.
Contested Wills in Victoria
A guide to contesting a will in Victoria, covering Part IV of the Administration and Probate Act 1958, who is an eligible person, the six month deadline from the grant of representation, the Supreme Court's Testators Family Maintenance List and the County Court, mediation and costs.
Contested Wills in Western Australia
A guide to contesting a will in Western Australia, covering who can claim under the Family Provision Act 1972, the six month time limit (which generally runs from the grant of probate or letters of administration), probate caveats, the Supreme Court process, mediation and costs.

Practical guidanceShow

What should you do first if you think you have been unfairly left out?

Move quickly, because in this area the clock usually starts before you know there is a problem. Find out the date of death and whether probate or letters of administration have been granted; the online probate registry search or notices of intended distribution in your state will often tell you. Work out which state or territory governs the estate, because that determines your deadline. Ask the executor in writing for a copy of the will and a list of the estate's assets and liabilities. Then speak to a lawyer about whether you are an eligible person, because eligibility is a legal question and the categories are narrower than people expect. In the meantime, start assembling your own financial picture: income, expenses, assets, debts, superannuation, health issues and any support you gave the deceased. Family provision cases are decided on financial need and relationship evidence, and the person who has that material organised early is in a much stronger position to settle well.

How strong is a claim by an adult child?

Adult children are eligible to claim in every state and territory, but success is never automatic. There is no entitlement to an equal share and no rule that every child must receive something. The court looks at the size of the estate, the applicant's financial position and future needs, the applicant's health and earning capacity, the closeness or estrangement of the relationship, whether the applicant contributed to the deceased's property or care, whether the deceased had already given the applicant substantial help during their lifetime, and the competing needs of the other beneficiaries, particularly a surviving spouse. Estrangement matters, but courts look at why the relationship broke down and who was responsible. A well documented explanation left by the deceased carries weight, and in South Australia the deceased's wishes are now expressly the primary consideration. A modest claim against a large estate where the applicant is in genuine need is much stronger than a large claim against a small estate.

What evidence actually decides these cases?

In family provision claims, documents beat assertions. Bank statements, tax returns, Centrelink records, a properly prepared statement of assets and liabilities, medical reports and evidence of housing costs do the heavy lifting. If you say you cannot work, obtain a report that says so. If you say you spent years caring for the deceased, produce diaries, photographs, messages and third party statements. In validity challenges the key documents are the solicitor's will file and the deceased's medical records. Contemporaneous file notes recording that the solicitor saw the will maker alone, asked about their assets and family, and formed a view about capacity are very powerful. So are GP notes, cognitive screening results, hospital discharge summaries and aged care progress notes from around the date of the will. Specialist opinion on capacity is usually retrospective, and its value depends almost entirely on the quality of the underlying records.

Should you lodge a probate caveat?

A caveat is a blunt but effective tool. It stops a grant issuing, which stops the estate being distributed, and it buys time to investigate. It is only appropriate where you have a legitimate interest in whether the will is admitted to probate, for example because you are a beneficiary under an earlier will or would take on intestacy. It is not the right tool for a family provision claim: a person whose only complaint is that they were not adequately provided for is generally not an interested person for probate purposes, because their claim is unaffected by which will is admitted. If the applicant for probate applies to have the caveat removed and you cannot show a legitimate interest, you may be ordered to pay costs. Caveats also have a limited life: in New South Wales a caveat remains in force for six months from the date it is filed. Speak to a lawyer before filing, and use the time it buys to gather the will file and the medical records.

How much does an estate dispute cost and who ends up paying?

Costs are the single biggest risk in estate litigation, and a contested validity trial can run for years. Some lawyers act on a conditional or no win no fee basis in family provision claims, sometimes with an uplift fee. In New South Wales, Victoria and Queensland the applicant's side must file an estimate of their costs up to the end of mediation by the first directions hearing at the latest, and the New South Wales and Victorian practice notes also require any uplift fee arrangement to be disclosed. Costs are always discretionary. Successful applicants often recover costs from the estate; unsuccessful applicants can be ordered to pay the executor's costs personally; and executors are usually indemnified from the estate if they act reasonably. Courts have made clear that the estate's resources must not be swallowed by the fight, and the New South Wales practice note allows recoverable costs to be capped, including where the net estate is under $1 million. Before you file, ask your lawyer for a written estimate, an assessment of what the estate can bear, and an honest view of the range of likely outcomes.

What can you do to reduce the chance of a claim against your own estate?

In general you cannot contract out of family provision legislation. New South Wales is the exception, and even there a person's release of their right to claim has effect only if the Supreme Court approves it. You can, however, make a claim less likely and less likely to succeed. Speak to a lawyer about who is eligible to claim in your state and how a court would view your estate plan. Consider making some provision for a person with a genuine claim rather than nothing at all. Leave a clear, factual statement of your reasons, prepared with your solicitor, and keep it with the will rather than in it. Have your capacity assessed and documented if you are elderly, unwell or making a significant change, and have your solicitor see you alone. Consider structures that reduce the size of the estate, such as jointly held property, binding death benefit nominations for superannuation and family trusts, remembering that in New South Wales notional estate orders can reach some of those assets. Review the plan whenever your family changes.

What should an executor do when a claim arrives?

Stop and speak to a lawyer before you distribute anything. Once written notice of a claim is received, distributing may expose you personally. Write to every beneficiary telling them about the claim and what it could mean for them, and keep them informed as it progresses. Your role is not to win at all costs; it is to place the estate's true financial position before the court, to identify all potential claimants, and to give the beneficiaries the chance to be heard. Prepare a full and accurate affidavit of assets, liabilities, expenses and distributions early, because the court will require it and because it drives settlement. Get valuations for real property and business interests. Obtain settlement authority from the adult beneficiaries before mediation. Keep careful records of your costs. If you act reasonably and even handedly you will normally be indemnified out of the estate; if you take sides or run up disproportionate costs, you may not be.

Common questions

How long do I have to contest a will in Australia?

It depends on the state or territory. New South Wales allows 12 months from the date of death. Victoria, South Australia and the ACT allow six months from the grant of representation. Western Australia allows six months from the date the administrator becomes entitled to administer the estate there, which is usually the grant. Tasmania allows only three months from the grant. The Northern Territory allows 12 months from the grant. Queensland requires proceedings to be started within nine months of death unless the court directs otherwise, and written notice to the executor within six months of death stops the estate being safely distributed before then. Courts can extend time but are not obliged to, so treat the deadline as fixed.

Can I contest a will if I am not related to the deceased?

Sometimes. Every jurisdiction limits claims to a defined class of eligible persons, and blood relationship is not always required. New South Wales allows claims by a person who was at some time wholly or partly dependent on the deceased and was a grandchild or a member of the same household, and by a person who lived in a close personal relationship with the deceased. Queensland allows claims by a parent, the parent of the deceased's child under 18, or a person under 18, if they were wholly or substantially maintained or supported by the deceased. Victoria and South Australia have their own categories. Check the eligibility list for the state that governs the estate before assuming you cannot claim.

Is superannuation part of the estate for a family provision claim?

Usually not. Superannuation is held by a fund trustee and is generally paid to a dependant or to the legal personal representative under the fund's rules and a binding or non-binding nomination, so it does not automatically form part of the estate. If super is paid to the estate it does become an estate asset. Disputes about who should receive a death benefit are handled through the fund's internal process and then the Australian Financial Complaints Authority. In New South Wales, notional estate orders can in some circumstances reach assets that passed outside the estate.

What is a notional estate order and where does it apply?

A notional estate order lets the court designate property that is not part of the estate, or that has already been distributed, as notional estate so that a family provision order or a costs order can be made against it. It can apply to assets that passed by survivorship, into a trust, or through a relevant property transaction before death. New South Wales is the only Australian jurisdiction with these powers, under Part 3.3 of the Succession Act 2006. Elsewhere, assets that pass outside the will are generally beyond the reach of a family provision claim.

Can I challenge a will because the person had dementia?

A diagnosis alone is not enough. The test, which comes from Banks v Goodfellow (1870), asks whether, when the will was made, the person understood the nature and effect of making a will, knew in general terms what they owned, appreciated the claims of the people who might expect to benefit, and was not affected by a disorder of the mind that distorted their decision. Many people with early dementia retain that capacity, and capacity can fluctuate. The evidence that matters is the solicitor's file, the medical records around the date of the will, and specialist opinion based on those records.

What happens if the estate has already been distributed?

It becomes much harder. The states and territories protect properly made distributions in different ways: some protect a personal representative who distributes after a waiting period without notice of a claim, and several do not allow an extension of time to be sought once the estate has been finally distributed. The court generally cannot order provision out of property that has been properly distributed, although in New South Wales it can sometimes be designated as notional estate. That is why giving written notice of an intended claim to the executor early, in addition to meeting the filing deadline, matters so much. If you learn of the death late, speak to a lawyer immediately about applying for an extension of time and about whether any assets remain undistributed.

Do I have to go to court to contest a will?

Often not to a final hearing. Many estate disputes settle, and courts actively push the parties towards mediation. New South Wales refers family provision applications to court-annexed mediation in its Probate and Family Provision List, Victoria generally refers all Testators Family Maintenance claims to mediation, and Queensland refers applications to mediation at the earliest practical time where appropriate. Many claims settle even before proceedings are filed, on an exchange of financial disclosure and a without prejudice offer. Filing is often necessary to protect the deadline, but a hearing usually is not.

Can an executor also be a beneficiary and defend a claim?

Yes, and it is very common for an adult child to be both. The two roles pull in different directions, so the executor must keep them separate: as executor you owe duties to the estate and must be even handed, and as beneficiary you have your own interest to protect. Courts expect an executor to disclose the estate's true position, notify all beneficiaries and potential claimants, and not run up disproportionate costs. Where the conflict is acute, separate representation or an independent administrator may be appropriate.

What is the difference between probate in common form and solemn form?

Common form is the ordinary administrative grant made by a probate registry on the executor's affidavit evidence, without a contested hearing. Solemn form probate is a grant made by a judge after a contested hearing in which the person propounding the will proves due execution, testamentary capacity, and knowledge and approval. A grant in solemn form is binding on everyone who was party to or notified of the proceedings, which is why it is sought where validity is genuinely in dispute.

Sources

Succession Act 2006 No 80 (NSW) (accessed 8 Nov 2026)
Administration and Probate Act 1958 (Vic) (accessed 8 Nov 2026)
Succession Act 1981 (Qld) (accessed 8 Nov 2026)
Family Provision Act 1972 (WA) (accessed 8 Nov 2026)
Succession Act 2023 (SA) (accessed 8 Nov 2026)
Testator's Family Maintenance Act 1912 (Tas) (accessed 8 Nov 2026)
Family Provision Act 1969 (ACT) (accessed 8 Nov 2026)
Family Provision Act 1970 (NT) (accessed 8 Nov 2026)
Supreme Court of NSW - Contested probate proceedings (accessed 8 Nov 2026)
Practice Note SC EQ 07 - Probate and Family Provision List (NSW) (accessed 8 Nov 2026)
Practice Note SC Eq 7 (NSW), full text (reissued 13 June 2024, in force from 17 June 2024) (accessed 8 Nov 2026)
Supreme Court of Victoria - Practice Note SC CL 7 Testators Family Maintenance List (accessed 8 Nov 2026)
Supreme Court of Queensland - Amended Practice Direction 14 of 2023, Wills and Estates List (and Family Provision Applications) (accessed 8 Nov 2026)
Victorian Law Reform Commission - Succession Laws Report, Family Provision (accessed 6 Sept 2026)
Legal Aid NSW - Family provision claims (accessed 8 Nov 2026)
Law Handbook South Australia - Inadequate provision (accessed 8 Nov 2026)
Family Law Act 1975 (Cth) s 79AA (AustLII) (accessed 8 Nov 2026)
Moneysmart - Who gets your super if you die (accessed 8 Nov 2026)
Australian Financial Complaints Authority - Superannuation complaints (accessed 8 Nov 2026)
Supreme Court of NSW - Justice Lindsay, The role of evaluation in succession litigation (16 June 2021), quoting Banks v Goodfellow (accessed 8 Nov 2026)

This is general legal information, not legal advice. It does not claim that a solicitor has reviewed this page for your situation, and it does not create a solicitor-client relationship.