Contesting a will

If you’ve been unfairly excluded or left with an inadequate inheritance, contesting a will is your legal right to ensure fairness. In Queensland, the Succession Act 1981 provides a safety net for spouses, children, and dependants who have been left without adequate provision.

At Aylward Game Solicitors, our expert team, led by Ian Field (Accredited Specialist in Family Law, Wills & Estates) and Kauri Burgess (Specialist Wills & Estates Solicitor), provides the legal force needed to navigate the complexities of the Queensland legal system. With offices in Brisbane, the Gold Coast, and the Sunshine Coast, we are committed to protecting your rights.

Understanding Will Disputes: Challenging vs. Contesting

In Queensland, the distinction between challenging and contesting a Will is fundamental to your legal strategy.

Challenging a Will (Validity)

Challenging a Will targets the document’s legitimacy. Under the Succession Act 1981 (Qld), a Will is void if the testator lacked testamentary capacity (due to illness like dementia), was a victim of fraud, or was subjected to undue influence (coercion). If successful, the court sets the Will aside, potentially reverting to an earlier Will or the laws of intestacy.

Contesting a Will (Family Provision)

Contesting a Will formally by making a Family Provision Application (FPA) accepts that the Will is valid but disputes the distribution. Per Section 41, eligible persons (spouses, children, or dependants) argue that the deceased failed to provide adequate provision for their proper maintenance and support. The court then weighs your financial need against the estate’s size and other beneficiaries’ claims to determine a fair redistribution.

If you are looking for will contesting lawyers who understand the nuances of the Succession Act 1981 (Qld), our team offers the strategic experience required to handle these sensitive matters.

Who Can Contest a Will in Queensland?

Not everyone can initiate a legal claim against an estate. Under Section 41(1) of the Succession Act 1981 (Qld), only eligible persons may apply for a Family Provision order.

Who can contest a will? The eligible categories in QLD are:

• Spouses: Including married partners, de facto partners (living together for at least 2 years), and registered partners.
• Children: Including biological children, adopted children, and step-children.
• Dependants: Individuals who were being wholly or substantially maintained by the deceased at the time of death. This may include grandchildren or parents under specific circumstances.

Grounds for Contesting a Will QLD

To be successful in contesting a will in Queensland, the court applies a two-stage test:

• Inadequate Provision: Has the deceased failed to make adequate provision for your proper maintenance and support?
• Court Discretion: If the answer is yes, what amount (if any) should be awarded from the estate?

The court considers your financial position, the size of the estate, your relationship with the deceased, and the needs of other beneficiaries. Ian Field and Kauri Burgess leverage their decades of experience to build a compelling case that highlights your specific needs to the Supreme Court of Queensland.

The Cost of Contesting a Will in Queensland

The cost of contesting a Will in Queensland varies based on the case’s complexity and whether it reaches a trial. Generally, legal fees for a Family Provision Application can range from $10,000 to over $100,000. (Costs Of Contesting A Will (Qld), 2026)

However, the general rule in estate litigation is that if a claim is successful and meritorious, the Court typically orders that the applicant’s legal costs be paid out of the estate assets. If a claim is frivolous or unsuccessful, the applicant may be ordered to pay their own costs and potentially the estate’s legal fees.

The Legal Process: How to Contest a Will

If you are wondering how can you contest a will, the process generally follows these steps:

1. Initial Notice (The 6-Month Rule)

The process begins with a formal Notice of Intention to Claim. You must notify the executor in writing within six months of the testator’s death. This notice creates a legal stay, preventing the executor from distributing estate assets. If notice is not provided and the assets are distributed, you may lose the ability to recover funds, even if you have a valid claim.

2. Filing the Application (The 9-Month Deadline)

If negotiations fail following the initial notice, you must formally file an Originating Application and supporting affidavits in the Supreme Court within nine months of the date of death. These documents must detail your financial need and the nature of your relationship with the deceased. Missing this strict deadline usually requires a court-granted extension, which is rarely provided without an exceptional excuse.

3. Mandatory Mediation

Queensland courts mandate mediation for almost all Family Provision Applications. This is a critical opportunity for Kauri Burgess to utilise her mediation expertise. During this private forum, all parties attempt to reach a compromise. Settling here is highly advantageous, as it preserves the estate’s value by avoiding the astronomical costs of a trial.

4. Supreme Court Hearing

If a resolution is not reached, the matter proceeds to a trial. A judge will evaluate the evidence, including your financial resources and the deceased’s moral duty. The court will then determine if a redistribution is warranted and issue a legally binding order.

People’s Commonly Asked Questions about Contesting a Will

1. How successful are people contesting wills?

Statistically, the success rate for meritorious claims is quite high. In Queensland, the courts are generally inclined to ensure that eligible persons are not left in financial hardship. In most cases (approx. 90%+), settlement occurs during the mandatory mediation phase. (Success rate of contesting a will, 2026) If a claimant can demonstrate a clear financial need and a breach of moral duty by the deceased, the likelihood of a redistribution is strong. However, success depends heavily on the size of the estate and the competing needs of other beneficiaries.

2. What are the risks of contesting a will?

The primary risk is financial. If the court deems a claim to be frivolous or vexatious (lacking merit), the judge may order the applicant to pay the estate’s legal costs out of their own pocket. Additionally, there is the risk of familial estrangement, as litigation can permanently damage relationships between siblings and extended family. Finally, if the legal fees exceed the eventual award, the claimant may walk away with nothing.

3. What are the legal bases for contesting a will in Australia

In Australia, specifically under the Succession Act 1981 (Qld), the primary grounds are:

• Family Provision: Arguing that the Will failed to provide adequate provision for proper maintenance and support.
• Lack of Capacity: Proving the deceased suffered from a condition (like dementia) that prevented them from understanding the Will.
• Undue Influence: Showing the deceased was coerced or pressured.
• Fraud or Forgery: Proving the signature or the document itself is not genuine.

4. How much does it cost to contest a will in Australia?

The cost varies significantly. A matter settled early in mediation might cost between $10,000 and $25,000. However, if the matter proceeds to a full trial in the Supreme Court, costs can exceed $100,000. (Costs Of Contesting A Will (Qld), 2026) At Aylward Game Solicitors, we focus on strategic mediation to keep these costs manageable for our clients.

5. What are the most common reasons for contesting a will?

The most frequent drivers of estate litigation include:

• Unfair Distribution: One child receives significantly more than others without a clear reason.
• Blended Family Conflicts: Step-children being excluded in favour of a new spouse (or vice versa).
• Dependant Need: A claimant having a disability or chronic illness that requires more financial support than the Will provided.
• Estrangement: A child being left out entirely due to a past family rift.

6. What is the 28-day rule in wills?

In many Australian jurisdictions, the 28-day rule refers to the survival period. Under Section 33B of the Succession Act 1981 (Qld), a beneficiary must usually survive the deceased by at least 30 days (often rounded to 28 days in common parlance) to inherit. If the beneficiary dies within this window, the gift typically fails and reverts to the residue of the estate, unless the Will specifies otherwise. (SUCCESSION ACT 1981 – SECT 33B Beneficiaries must survive testator for 30 days, 1981)

7. What overrides a will?

Several legal instruments and structures can bypass the instructions in a Will:

• Joint Tenancy: Property held as Joint Tenants passes automatically to the survivor, regardless of what the Will says.
• Superannuation: Death benefits are governed by the fund’s trustee and a Binding Death Benefit Nomination (BDBN), not the Will.
• Life Insurance: If a specific beneficiary is named on the policy, the payout goes directly to them.
• Court Orders: A Family Provision order from the Supreme Court can legally vary the distribution of the estate. (Succession Act 1981, 1981)

8. Who pays legal fees when contesting a will in Australia?

The general rule in successful, meritorious cases is that the estate pays the legal fees for both the executor and the claimant. However, the court has absolute discretion. If the claimant is unsuccessful or the claim is deemed an unnecessary money grab, the court may order the claimant to pay their own costs and, potentially, the estate’s costs as well. (Succession Act 1981)

Expert Legal Team

When you choose Aylward Game Solicitors, you aren’t just getting a contesting a will lawyer; you are gaining a dedicated legal force.

• Ian Field (Acc. Spec. Fam.): As an Accredited Specialist with a background in sociology and decades of experience in both the UK and Australia, Ian brings a sympathetic yet practical approach to Wills and Estates. His deep understanding of family dynamics makes him a formidable advocate in complex disputes.
• Kauri Burgess: With a stellar reputation in Estate Litigation and a background across diverse industries, including mining and aviation, Kauri excels in risk management and strategic negotiation. Her holistic approach ensures that your legacy is preserved and your wishes are honoured.

Frequently Asked Questions (FAQs)

What is the time limit for contesting a will in Australia (QLD)?

In Queensland, you must provide notice to the executor within 6 months of the date of death and file your formal application in the court within 9 months. Missing these dates can jeopardise your claim.

Can a stepchild contest a will?

Yes. Under QLD law, step-children are considered children of the deceased and are eligible to file a Family Provision Application if they have been left with inadequate provision.

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

Not necessarily. Most cases are settled during mediation. Our goal is to reach a settlement that avoids the emotional and financial strain of a trial while ensuring you receive a fair share.

What factors does the court consider?

The court looks at your financial needs, your health, the length of your relationship with the deceased, and any contributions you made to the deceased’s assets or welfare.

How much will I receive if I contest a will?

There is no fixed formula. The amount depends on the estate’s size, your needs, and the needs of other beneficiaries. An expert will contesting lawyer can provide an estimate based on previous court rulings.

Can I contest a will if there is no will (Intestacy)?

Yes. If a person dies intestate, the estate is distributed according to set formulas. If these formulas leave you in financial hardship, you can still apply for further provision.

Who pays for the legal fees in a will dispute?

In most successful cases, the court orders the estate to cover the legal costs. If a claim is deemed frivolous, the person making the claim may be ordered to pay their own costs.

What is Undue Influence in Will contesting?

This occurs when the deceased was coerced or pressured into making a Will that did not reflect their free will. This is a ground for challenging the validity of the Will.

Contact Brisbane’s Leading Will Contesting Lawyers

If you are seeking to contest a will brisbane, Gold Coast, or Sunshine Coast, do not wait until the statutory time limits expire. The team at Aylward Game Solicitors is ready to assist you with compassionate, expert advice.

Call us today at 07 3236 0001 or visit our Family Law Website to book a consultation with Ian Field or Kauri Burgess. Let our collective experience be your legal force.