Contesting a will in Australia: who can, when, and how.

A will can be challenged on two main bases: that it is invalid (it wasn’t properly executed, or the testator lacked capacity), or that it doesn’t adequately provide for an eligible person. Most disputes are the second kind — a family provision claim.

Each Australian state has its own succession legislation, but the framework is similar: certain categories of "eligible persons" can ask a court to order provision (or further provision) from a deceased estate if they have been inadequately provided for. These are called family provision claims.

Who can contest

Eligibility depends on the state. In NSW (under the Succession Act 2006 (NSW)), eligible persons include:

• The spouse or de facto partner of the deceased
• A former spouse
• A child of the deceased (including adult children)
• A grandchild who was wholly or partly dependent on the deceased
• A person who was a member of the household and dependent on the deceased

Victoria, Queensland, WA, SA, Tasmania, and the territories each have similar but not identical lists. Adult independent children, for example, face different evidentiary thresholds in different states.

Time limits

• NSW: within 12 months of the deceased’s death (s58 Succession Act 2006).
• Victoria: within 6 months of the grant of probate or letters of administration (s99 Administration and Probate Act 1958).
• Queensland: 9 months from death (Succession Act 1981).
• Western Australia: 6 months from the grant.
• South Australia: 6 months from the grant.
• Tasmania: 3 months from the grant (with provision for extension).
• ACT: 6 months from the grant.
• Northern Territory: 12 months from the grant.

Extensions are sometimes granted but the threshold is high. The first thing to confirm if you’re considering a claim is whether you’re still in time.

What the court considers

The court asks two questions: (1) has the eligible person been left without adequate provision for proper maintenance, education, and advancement in life? and (2) if so, what provision should be ordered? In answering, the court weighs:

• The applicant’s financial position and needs
• The size and nature of the estate
• The applicant’s relationship with the deceased
• The applicant’s contributions to the deceased’s welfare and to the estate
• The needs and circumstances of other beneficiaries
• Any conduct of the applicant or others that’s relevant

The court is not asking what is "fair" in a moral sense. It is asking whether the eligible person has been left without adequate provision for what they reasonably need.

What courts typically award

Outcomes vary widely with estate size and applicant circumstances. Indicative ranges from reported NSW Supreme Court decisions 2023–24:

• Spouse with limited assets, modest estate: 50% to 100% of the estate
• Adult child with established financial position, modest estate: $0 to $100,000
• Adult child with health/dependency needs, substantial estate: 10% to 30%
• Dependent grandchild, large estate: 5% to 20%

Most family provision claims settle at mediation, which all NSW Supreme Court family provision matters are required to attend. Approximately 80% of claims resolve without a final hearing.

Costs

In NSW, the costs of unsuccessful family provision claims are usually paid out of the estate where the claim was brought "with reasonable prospects of success" — but this is not automatic, and large claims that are aggressively defended can leave the unsuccessful applicant personally liable. Costs as a percentage of estates settled at mediation typically run at 8–15% combined; claims that go to hearing can consume 25–45% of small to medium estates.

When to talk to a lawyer

Get advice if any of these apply:

• You are an eligible person who has been left out of a will or received less than you expected
• You are an executor or beneficiary facing a claim against the estate
• You are within (or near) the relevant state time limit
• You suspect a will may have been changed under undue influence or while the testator lacked capacity