Discovering that you’ve been left out of a loved one’s will, or that the terms don’t reflect what you expected, can be an unsettling experience on top of grief. In Australia, the law recognises that wills don’t always get it right — and in many cases, eligible people have options to challenge a will they believe is unfair or invalid.
Contesting a will is a distinct area of estate law, separate from simply disagreeing with how an estate was divided. It generally falls into two categories: disputing whether a will is legally valid in the first place, and making a claim for further provision from an estate because adequate provision wasn’t made for you. Understanding the difference — and the general process involved — can help you work out whether it’s worth instructing a solicitor about your situation.
Who Can Typically Challenge a Will?
Rules on who is eligible to contest a will vary depending on which state or territory you’re in, but in general, “eligible persons” often include spouses and de facto partners, children (including, in some circumstances, stepchildren), and people who were financially dependent on the deceased. Some states also recognise former spouses or members of the deceased’s household in certain circumstances. Because eligibility criteria differ across jurisdictions, this is one of the first things a solicitor will usually help confirm.
Separately, a will can also be challenged on validity grounds — for example, if there are concerns the will-maker lacked mental capacity when the will was signed, was subject to undue influence or pressure, or if the document wasn’t properly witnessed and executed according to the formal requirements in that state. These challenges look at whether the will itself is legitimate, rather than whether the outcome was fair.
What the Process Generally Involves
In most cases, contesting a will starts with a review of the will, the estate, and the claimant’s circumstances — including their relationship with the deceased, their financial position, and their needs. From there, many disputes are resolved through negotiation or mediation between the parties and their solicitors, without ever reaching a courtroom. Where agreement can’t be reached, an application may need to be made to the relevant state or territory court.
One point worth knowing generally: claims to contest a will are usually subject to strict time limits, and these limits can vary significantly depending on the state or territory and the type of claim being made. Missing a limitation period can affect your ability to bring a claim at all, so timing is one of the most important things to get advice on early — well before assuming you have plenty of time to decide.
It’s also worth noting that contesting a will doesn’t automatically mean a lengthy legal battle. Executors and beneficiaries often have a shared interest in resolving disputes efficiently, since prolonged litigation can erode the value of the estate for everyone involved. A solicitor experienced in this area can often help identify whether a claim has reasonable prospects before significant costs are incurred.
Common Red Flags Worth Knowing
A few situations tend to prompt people to seek advice about contesting a will: being left out entirely despite a close or dependent relationship with the deceased, a late-in-life change to a will shortly before death (particularly where the will-maker’s health or cognitive state was declining), unequal treatment between siblings or children without clear explanation, or a will that seems inconsistent with promises the deceased had made during their lifetime. None of these automatically mean a will is invalid or unfair in the legal sense, but they’re often worth raising with a solicitor for an assessment.
If you’re unsure whether your situation qualifies, the most reliable next step is generally to have your specific facts reviewed by a solicitor who works in this area regularly, since outcomes depend heavily on the details and the rules of the relevant state or territory.
If you’re dealing with a will or estate dispute and aren’t sure where to start, Request Legal Service can help match you with a solicitor suited to your situation — submit a quick enquiry and we’ll aim to connect you promptly with someone who can advise on the specifics of your case.
This article is for general informational purposes only and is not legal advice. Laws vary across Australian states and territories, and can change over time — for guidance on your specific situation, speak with a qualified solicitor or lawyer. Request Legal Service does not act as a law firm or provide legal representation.