Contesting a Will

How to contest a will in Australia

Last updated: 28 November 2016

In most cases, a person’s estate is divided up according to the instructions they left in their will.

Is there reason for doubt?

You may think you have been treated unfairly if a legacy is not what you anticipated, or you are left out of the will. Disappointment alone is not grounds for contesting a will in court, but if you feel you have genuine grounds for disputing a will, there may be legal steps you can take to challenge its validity.

Inheritance laws vary in each state, but broadly across Australia you may have grounds to challenge a will if it can be proved that:

  • Your loved one did not have the capacity to make a will at the time it was signed
  • The will appears to have been made under the influence of others
  • The will was not drawn up properly, or may have been tampered with
  • You think another will, written after the one that is believed to be your loved one’s last will and testament, exists

If legal steps are taken, then the court’s primary concern will be to ascertain that your loved one’s wishes were clear and to fulfil them, if so.

Dependents

If you believe that a loved one on whom you were dependent did not make adequate provision for you, a solicitor or community legal centre will be able to advise you.

Close relatives sometimes apply to contest wills when the outcome of a loved one’s will could lead to hardship. These are known as ‘testator’s family maintenance’ claims – the person who wrote the will is known in law as the testator.

Claimants in such will disputes are generally determined as people who had a close personal relationship with the person at the time of their death, most usually a spouse or life-partner, child or grandchild.

The time frame within which you’ll need to begin pursuing a testator’s family maintenance claim varies from state to state. In Victoria for instance, families must make an application within six months of the will being administered, while in New South Wales the timeframe is within 12 months of a loved one’s death.

Factors the court may consider include the competing claims of the other people named in the will, your own financial circumstances, contributions and earning capacity.