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Disputing a Will in Brisbane: The Ultimate Guide to Family Provision and Estate Litigation
Losing a loved one is an inherently emotional experience, but that grief is often compounded when the contents of a deceased estate appear unfair or invalid. If you have been left out of a legacy or believe the final wishes of a family member were compromised, understanding how to proceed with disputing a will is […]
Disputing a Will in Brisbane: The Ultimate Guide to Family Provision and Estate Litigation
Losing a loved one is an inherently emotional experience, but that grief is often compounded when the contents of a deceased estate appear unfair or invalid. If you have been left out of a legacy or believe the final wishes of a family member were compromised, understanding how to proceed with disputing a will is essential.
At Family Law Aylward Game Solicitors, we serve as a modern legal force across Brisbane, the Gold Coast, and the Sunshine Coast. Our team, led by Accredited Specialist Ian Field and Estate Dispute expert Kauri Burgess, provides the tactical and compassionate advocacy required to navigate the complexities of the Succession Act 1981 (Qld). Whether you are questioning testamentary capacity or seeking a fair share through a family provision claim, this guide provides the expert clarity you need.
Protect Your Rights, Preserve Your Peace
Contact Our Accredited Family Law Specialists.
What Does it Mean to Dispute a Will?
In legal practice, disputing a will generally falls into two distinct categories: challenging the validity of the document itself or contesting the provision (the share) made for a beneficiary.
Many people ask, How do you dispute a will? The answer depends on whether you believe the will is a forgery, was made under duress, or simply fails to make adequate provision for your proper maintenance and support.
Under Queensland law, specifically the Succession Act 1981, the court has the power to intervene if a will does not meet the community’s moral expectations for supporting family members.
Who Can Dispute a Will in Queensland?
Not everyone has the legal standing to bring a claim against an estate. To dispute a will, you must be considered an eligible person. Under Section 41(1) of the Succession Act 1981 (Qld), eligible persons include:
- Spouses: This includes legally married partners, de facto partners (including same-sex couples), and even former spouses in certain circumstances.
- Children: Biological, step, and adopted children are all eligible.
- Dependants: Any person who was being substantially maintained or supported by the deceased at the time of their death, such as a grandchild or a parent.
If you fall into one of these categories and feel the deceased failed to provide for you, our solicitors, Ian Field and Kauri Burgess, can help you assess the strength of your claim.
The Strategic Roadmap: How We Resolve Your Will Dispute
Navigating a dispute requires more than just filing papers; it requires a tactical Legal Force approach. Under the leadership of Ian Field and Kauri Burgess, we manage every stage of your case with meticulous precision.
Initial Evaluation: Confirming Your Standing and Eligibility
The first hurdle in disputing a will is establishing Standing. The court will not hear a claim from a stranger; you must prove you are an eligible person as defined by Section 40 of the Succession Act 1981 (Qld).
During our initial evaluation, we perform a deep-dive analysis into:
- Relationship Continuity: We assess your relationship with the deceased, especially for de facto or Same-Sex Couples, to ensure you meet the two-year cohabitation requirement or have a registered relationship.
- Financial Need vs. Estate Size: We weigh your current assets and liabilities against the total value of the estate. The court’s goal is adequate provision, meaning if the estate is large and your need is great, the grounds for a claim are significantly stronger.
- The Moral Duty Test: We evaluate whether the deceased had a moral obligation to provide for you that was breached in their final will.
Notification & The Protective Power of a Probate Caveat
Speed is critical. Once we determine you have a claim, we must stop the executor from distributing assets.
- The Formal Notice: Under Section 44(3) of the Act, we provide the executor with written notice of your intended claim. This legally freezes the estate for 6 months, protecting the assets while we prepare your case.
- Filing a Probate Caveat: If we are disputing a will after probate or suspect the will is invalid (due to forgery or lack of capacity), we file a Probate Caveat in the Supreme Court. This prevents a Grant of Probate from being issued, effectively locking the estate until the dispute is resolved.
Evidence Gathering: Building an Irrefutable Case
A dispute is only as strong as the evidence supporting it. Kauri Burgess uses her background in risk management to compile a comprehensive Evidence Portfolio:
- Testamentary Capacity: We apply the Banks v Goodfellow test. This involves gathering contemporaneous medical records, nursing home notes, and witness statements to prove the deceased didn’t understand the nature and effect of their will at the time of signing.
- Financial Disclosure: For family provision claims, we assist you in preparing a detailed Financial Statement of Advice. We also investigate the financial positions of the other beneficiaries to see if their moral claim is weaker than yours.
- Tracing Assets: In complex cases, we look for Notional Estate assets, money or property transferred out of the estate just before death to avoid a claim.
Protect Your Rights, Preserve Your Peace
Contact Our Accredited Family Law Specialists.
Mediation: Solving Disputes Without the Courtroom
Queensland courts mandate mediation for almost all estate disputes. This is where Ian Field’s expertise as a Collaborative Lawyer and Kauri Burgess’s skill as a qualified mediator come to the forefront.
- Shuttle Mediation: Often, emotions are too raw for face-to-face meetings. We conduct shuttle mediation, in which the parties remain in separate rooms while the mediator negotiates a settlement.
- Confidentiality & Control: Unlike a public court hearing, mediation is private. You maintain control over the outcome, rather than leaving it to a judge’s discretion.
- Cost-Efficiency: Settling at mediation can save tens of thousands of dollars in legal fees, which would otherwise be drained from the estate.
Litigation: Representation in the Supreme Court of Queensland
If mediation fails, your matter proceeds to a trial. This is the final stage in disputing a will.
- The Trial Process: We represent you before a Supreme Court judge. We present the medical evidence, witness testimonies, and financial data gathered during the earlier stages.
- The Judge’s Order: The judge has the discretion to vary the will. Under Section 41, the judge can essentially rewrite portions of the will to ensure you receive a fair share for your maintenance, education, or advancement in life.
- Cost Orders: We fight to ensure that, as a successful claimant, your legal costs are paid out of the estate, protecting your eventual inheritance.
Can You Dispute a Will After Probate?
A frequent concern for clients is: Can you dispute a will after probate has been granted? The answer is yes, but it becomes significantly more difficult.
Disputing a will after probate means the court has already officially recognised the executor and the validity of the document. While you can still file a family provision claim, you must act before the executor distributes the assets. Once the house is sold and the money is spent, recovery is nearly impossible. This is why we recommend filing a Probate Caveat as soon as possible to halt the process while we investigate your claim.
People’s Commonly Asked Questions about Disputing a Will
What are the most common reasons for contesting a will?
The most common reason is a Family Provision Claim, in which an eligible person (such as a child or spouse) argues they were left without adequate provision. Other frequent grounds include lack of testamentary capacity (e.g., dementia), undue influence, and suspected fraud or forgery during the will’s execution.
How successful are people in contesting wills?
Statistically, people are highly successful. Studies in 2026 suggest that 74% to 77% of contested will claims that reach a final hearing result in a variation. However, when settlements reached during mediation are included, the success rate of receiving an additional benefit is estimated at 85-90%.
Can a family member contest the will?
Yes, but only eligible family members. Under the Succession Act 1981 (Qld), this is limited to the deceased’s spouse (married or de facto), children (including step-children), and dependants (such as grandchildren or parents) who were being financially supported by the deceased at the time of death.
How much does it cost to contest a will in Australia?
Costs vary by complexity, typically ranging from $25,000 to over $100,000. Most specialist lawyers, including the team at Aylward Game Solicitors, offer no-win, no-fee arrangements for meritorious claims, where legal fees are often paid directly out of the estate upon a successful settlement.
What is the 28-day rule in wills?
Also known as the Survivorship Period, the 28-day rule (often 30 days in QLD) requires a beneficiary to survive the deceased by that specific timeframe to inherit. If the beneficiary dies within 28-30 days of the testator, they are legally treated as having died first, and the gift lapses.
Protect Your Rights, Preserve Your Peace
Contact Our Accredited Family Law Specialists.
What not to tell the attorney?
Never withhold information about estranged relationships, previous gifts received while the deceased was alive, or your own financial assets. Legal professional privilege protects your honesty; withholding these facts allows the other side to surprise your lawyer in court, potentially destroying your credibility and your case.
What are the chances of contesting a will and winning in Australia?
If you meet the eligibility criteria and can demonstrate a genuine financial need, your chances of winning or reaching a settlement are excellent, historically above 75%. Success depends on the size of the estate and whether the deceased had a moral duty to provide for you.
What is the most common inheritance mistake?
The most common mistake is missing legal deadlines. In Queensland, you must notify the executor of your intent to claim within 6 months and file in court within 9 months. Waiting too long can allow the executor to distribute assets, making recovery virtually impossible regardless of the claim’s merit.
Is it worth disputing a will?
It is worth disputing if you have been left in financial hardship, and the estate is large enough to cover both a settlement and legal fees. If the estate is very small (under $150,000), legal costs may consume a significant portion of the inheritance, making mediation the only viable path.
How to stop a family member from contesting a will?
While you cannot legally stop someone from filing a claim, you can make it harder to win. Use a Statement of Wishes to explain your reasoning, ensure the will is drafted by a specialist like Kauri Burgess to prove capacity, and consider Binding Financial Agreements or inter-vivos (lifetime) transfers.
What is the best way to prevent a sibling from contesting a will?
Transparency and professional drafting are key. Have your lawyer perform a Capacity Assessment at the time of signing to defeat dementia claims. Additionally, providing even a small, structured gift rather than a total disinheritance can sometimes reduce a sibling’s motivation or legal standing to claim inadequate provision.
Why Choose Ian Field and Kauri Burgess?
Estate disputes often intersect with complex family dynamics.
Ian Field is an Accredited Specialist Family Lawyer with over 25 years of experience. His expertise in Family Mediation and Dispute Resolution ensures that even high-conflict separations or estate battles are handled with a tactical, result-oriented focus.
Kauri Burgess brings a unique background in mining and construction to her Wills and Estates practice. Her experience in risk management and strategic planning enables her to navigate complex asset portfolios, such as family businesses or industrial assets, with a level of detail that most general solicitors lack.
Why These 2026 Changes Matter for Will Disputes
When you are disputing a will after probate in 2026, these updates change your tactical roadmap:
- Discovery of Assets: We now perform Digital Audits as part of our Evidence Gathering. If a testator hid assets in offshore crypto exchanges, we use 2026 tracing protocols to bring those assets back into the Notional Estate.
- Mediation Standards: Under the new 2026 Practice Directions, Mediation is more rigorous. Parties are required to provide a Statement of Impact, which Kauri Burgess uses to highlight the claimant’s financial and emotional needs early in the process.
- Time Limits & Deadlines: While the core 6-month (notice) and 9-month (filing) rules remain, the court has become stricter in 2026 regarding Out-of-Time applications. Unless there is a revolutionary reason (like newly discovered digital assets), the court is less likely to grant extensions.
Protect Your Rights, Preserve Your Peace
Contact Our Accredited Family Law Specialists.
Frequently Asked Questions About Disputing a Will
How do you dispute a will in Brisbane?
To dispute a will, you must first confirm you are an eligible person (spouse, child, or dependant). You then notify the executor of your claim and file a summons in the Supreme Court of Queensland. Most cases are resolved through mandatory mediation before reaching a judge.
How hard is it to contest a will in Australia?
While the legal requirements are strict, the process is streamlined through mediation. If you can demonstrate a financial need or prove the will is invalid due to lack of capacity, your chances of a successful settlement are high.
What is the time limit for disputing a will?
In Queensland, you must notify the executor of your intention to claim within 6 months of the date of death. You must then formally file the claim in court within 9 months of the date of death. Missing these deadlines can result in the loss of your rights.
Who can dispute a will under the Succession Act?
Under Section 41 of the Succession Act 1981, eligibility is restricted to the deceased’s spouse (including de facto), children (including step-children), and any dependents who were being supported by the deceased at the time of death.
What are the most common reasons for disputing a will?
The most common reasons include being unfairly left out of a will, the deceased lacking mental capacity to sign the document, undue influence by a third party, or a will that is outdated and no longer reflects recent changes in family dynamics.
How much does it cost to dispute a will?
Costs vary based on complexity. However, in many successful family provision claims, the court may order that your legal fees be paid out of the estate assets, meaning there is often no upfront cost to the claimant.
What is a Probate Caveat?
A Probate Caveat is a legal notice filed with the Supreme Court that prevents the court from granting probate. This is a vital tool that prevents an executor from dealing with an estate while a dispute over the will’s validity is ongoing.
Can a grandchild dispute a will?
A grandchild can only dispute a will if they were being substantially maintained or supported by their grandparent at the time of death. Simply being a family member is not enough; there must be a proven financial dependency.
Take Action with the Legal Force of Aylward Game
Don’t let unfairness dictate your future. Whether you are dealing with Separation and Divorce, De Facto Couples issues, or complex Estate Disputes, Ian Field and Kauri Burgess are ready to protect your rights.
Contact Family Law Aylward Game Solicitors today to schedule a consultation and receive an expert evaluation of your matter.
- Phone: 07 3236 0001
- Email: mail@aylwardgame.com.au
- Visit: Level 4, 183 Wickham Tce, Brisbane QLD 4001
Serving Brisbane, Gold Coast, and the Sunshine Coast with nearly 80 years of cumulative legal experience.
Protect Your Rights, Preserve Your Peace
Contact Our Accredited Family Law Specialists.
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