Contesting a Will in Australia

When can you challenge the validity of a Will?

You may be able to challenge the validity of a Will if:

• you believe the deceased didn't have capacity to make a Will, or

• they were under undue influence.

It’s important to understand the time limitations for these types of claims.

This claim must be made before probate is granted. If probate has already been granted, this means that the Court has legally recognised the validity of the Will and the executor responsible for the distribution of the estate and assets. If your claim is made late, there might end up being no estate to claim against if the executor finishes distributing the estate first.

Are there time limits for challenging a Will?

The most important part of contesting a Will is to get started early. It can take time to organise what you need to make your claim and you don’t want to miss any of the strict time limits that apply. Generally, you have between six and 12 months (depending on which state you're in) following the date of death, or the date probate was granted, to lodge your claim. In some jurisdictions, the time limit commences when probate is granted.

Is there a difference between challenging a will and contesting a will?

There is a difference between challenging a Will and contesting a Will, however the terms are often used interchangeably.

Challenging a Will is generally used when you challenge the overall validity of a Will and contesting a Will is generally used when you are contesting the provisions contained in the Will.

What if there is no will?

When someone dies without a Will, this is known as ‘dying intestate’. With only around 50% of people having a Will, it is more common than you might expect. However, while it’s not uncommon, a loved one dying intestate can make matters more complicated.

If your loved one has passed without a Will, an application needs to be made to the Court to appoint a person to act as the Administrator of the estate. This is because there is no executor appointed to manage the affairs.

This application is referred to as an application for a Grant of Letters of Administration on intestacy and it’s the first thing you need to do. The process can be complex and it’s best to have a lawyer assist you in making the application. 

In all cases where it is necessary to apply for a Grant of Letters of Administration, it is usually the person with the greatest entitlement to the estate, as determined by applying the intestacy formula, that applies for the Grant. For example, if a spouse or partner survives the deceased, they would usually bring the application. If the deceased is survived by children (and no spouse/partner) then one or more of them could apply.

The cost of challenging a Will

It’s important to understand that the estate of the deceased needs to be substantial enough to warrant disputing the Will. If we don’t believe the estate is substantial enough for you to dispute, we will be upfront with you and let you know in your first obligation-free consultation.

The costs to contest a Will are generally deducted from the settlement amount paid out by the estate. Our fees vary depending on the circumstances of each Will dispute, so it’s best to speak with one of our expert Will dispute lawyers to find out about the likely fees for your situation.

No Win, No Fee*

We offer No Win, No Fee* legal services when appropriate and when we believe your case is reasonably likely to be successful. 

For Will disputes, No Win, No Fee* arrangements mean you only pay our legal fees if we are successful, and these fees will generally be paid out of the Estate.

If we are unsuccessful, you will not need to pay our professional fees (the fees we charge for work performed by us). In most cases, disbursements (the out of pocket expenses that we pay to other people) must be paid whether you win or lose.