Finding out you have been left out of a will or treated unfairly in one can feel confusing and unsettling. You might wonder if it was a mistake or if something more serious happened during the will-making process. Either way, you are not powerless.
Concerns about undue influence, testamentary capacity, or inadequate provision are common reasons people decide to contest a will. Understanding your options early can make a big difference.
At Securator Legal, we have helped many people navigate the twists and turns of will disputes. In this guide, we will walk you through who can contest a will, the steps involved, and how to protect your interests during what can be a tough time.
Ready to learn how the process works? Let’s dive in.
Am I Eligible? Who Can Contest a Will in Australia
Before you start contesting a will, you need to know if you have the legal standing to make a claim. Not everyone has the right to challenge a will, and eligibility rules vary across Australian states.
In most cases, you could be considered an eligible person if you are:
- A spouse or de facto partner of the deceased
- A former spouse
- A child, stepchild, or adopted child
- A person who was partly dependent on the deceased and lived with them
- A person who had a close personal relationship with the deceased
The court also looks at your financial circumstances and whether the will provided adequately for your needs. If you believe you have been left with inadequate provision, it is important to act quickly.
Tip: Each state has slight differences in who qualifies as eligible. Getting clear advice from experienced dispute lawyers ensures you know where you stand before you invest time and legal costs.
Next, let’s look at what is included in the deceased’s estate and why that matters for your claim.
Deceased Estate: What’s at Stake When You Contest a Will
When you decide to contest a will, understanding the deceased estate is vital. It forms the total pool of assets the deceased person owned at the time of their death.
A typical deceased estate can include:
- Homes and investment properties
- Cash in bank accounts
- Shares, superannuation, and managed funds
- Personal belongings like cars, jewellery, and furniture
Not every asset falls into the estate automatically. For example:
- Property owned jointly often passes directly to the surviving owner.
- Superannuation benefits may not form part of the estate unless there is no valid binding nomination.
Tip: Taking a close look at the estate’s nature and structure helps your lawyer judge if a strong claim can be made. It also helps if other beneficiaries could be part of the dispute.
You can find more practical information about how estates work from trusted sources like Moneysmart’s guide on dealing with death.
Understanding the estate is one of the first real steps toward building a successful case.
Next, let’s explore the reasons you might have for challenging a will.
Legal Grounds for Contesting a Will: Know Before You Act
Contesting a will is not simply about feeling upset or left out. Australian law recognises specific legal reasons that allow a person to challenge the validity or fairness of a will.
Here are some common grounds for contesting a will:
- Lack of testamentary capacity: The will maker did not fully understand what they were doing when creating the will.
- Undue influence: The will maker was pressured or coerced by someone else when making their decisions.
- Fraud or forgery: Someone may have manipulated or faked the will.
- Improper execution: Legal requirements, such as witnesses being present, were not followed correctly.
- Inadequate provision: Eligible persons, such as family members, did not receive proper financial support under the will.
The earlier you identify which ground applies, the easier it is to gather strong evidence. Speaking with experienced lawyers early can improve your chances of building a successful claim.
Understanding the right reason for your challenge sets the foundation for everything that follows. Next, we will look at how dispute lawyers can support you during the process.
How Dispute Lawyers Can Change Your Outcome
Contesting a will involves much more than filling out paperwork. Having experienced lawyers by your side can make a big difference in how smoothly the process runs and how strong your case becomes.
Here’s how dispute lawyers help during will disputes:
- Assessing your claim: A good lawyer looks at your relationship with the deceased person, the value of the deceased estate, and your chances of success.
- Managing court proceedings: If a family provision claim or other action needs to be filed, your lawyer handles the documents, deadlines, and formal steps.
- Negotiating settlements: Dispute lawyers can often help settle the matter through mediation rather than full court hearings, saving time and legal costs.
- Protecting your interests: A lawyer fights to secure the best possible outcome based on your financial needs and entitlements.
Tip: Choosing a team that focuses on will disputes and family provision claims gives you a major advantage. Firms like Securator Legal bring practical strategies and deep knowledge to every case.
Next, we will talk about why moving quickly is so important, especially given the strict time limits involved.
Deadline Alert: Time Limits You Must Know
Time limits for contesting a will catch many people out. It is one of the biggest mistakes I see when handling family provision claims.
In most states, you only have between six months and twelve months from the date of death or the grant of probate to file your claim. If you miss that window, you might lose your right to challenge the will altogether.
I once helped a client who contacted me just two weeks before the time limit expired. We had to act fast, gathering necessary evidence, preparing urgent court documents, and filing an application to preserve their rights. Without quick action, they would have missed their chance and been locked out completely.
Main points to remember:
- Time limits vary slightly depending on your state or territory.
- The clock often starts ticking from the date of death or the date probate is granted, whichever comes first.
- In rare cases, courts may accept late applications, but you must show strong reasons for the delay.
Tip: Always get legal advice as soon as you realise there might be a problem. Waiting too long only makes your situation harder.
Next, we will explain why the grant of probate is a key piece in any will dispute.
Grant of Probate Explained: What It Means for Your Claim
The grant of probate is an important step in dealing with a deceased estate. It is the court’s official approval that the will is legally valid and that the executor can start administering the estate.
From my experience, acting before the grant of probate can sometimes strengthen your position. I once worked with a family member who suspected serious issues with a will’s validity. By moving quickly, we filed an objection before probate was granted, which helped protect important assets from being distributed too early.
Key points about probate:
- Probate confirms that the executor has the authority to act.
- Once probate is granted, the executor can pay debts, distribute assets, and carry out the wishes stated in the will.
- If you intend to challenge a will, taking steps before probate is granted can sometimes prevent assets from being sold or transferred too soon.
Tip: Even if probate has already been granted, you can still contest the will, but some strategic options may be reduced.
Understanding probate helps you see where your claim fits into the estate process.
Next, we will explore how most will disputes are settled without the need for court battles.
How Will Disputes Are Resolved Without Court Drama
Most will disputes never end up in a courtroom. Based on my experience, around 80% of family provision claims settle through negotiation or mediation before reaching a judge.
That is often better for everyone, saving time, stress, and significant legal costs.
Here’s how most disputes are resolved:
- Mediation: Both sides meet with a neutral third party to find a fair solution.
- Settlement agreements: Once an agreement is reached, it is formalised legally and becomes binding.
- Negotiations: Lawyers often negotiate informally, exchanging offers to reach an outcome both parties can live with.
In one case I handled, a family dispute over an estate worth nearly $2 million was settled through mediation within one day. If it had gone to trial, the legal fees alone would have swallowed hundreds of thousands of dollars from the estate.
Tip: Mediation is quicker, less expensive, and gives you more control over the outcome compared to letting a judge decide.
You can learn more about how mediation works by checking this government overview of mediation.
Next, we will look at what happens behind the scenes while a will dispute is underway, especially when it comes to managing the estate.
Managing the Estate During a Will Contest
When a will dispute starts, the executor is still responsible for managing the estate. But from experience, I can say that extra care is needed to protect the estate’s value during the dispute.
Here’s what usually happens:
- Asset protection: Executors must preserve estate assets and avoid selling or transferring anything unless absolutely necessary.
- Freezing orders: In some cases, a court can issue orders to stop assets from being moved while a claim is underway.
- Communication: Executors must act fairly and keep all parties informed about major decisions.
I once acted for an applicant where we successfully obtained an interim order to freeze the deceased’s bank accounts. Without that step, valuable assets could have been lost before the claim even had a chance to be heard.
Tip: If you are concerned that assets could be mismanaged during a dispute, it is vital to act early. Courts take these concerns seriously, especially when protecting the interests of all potential beneficiaries.
Managing the estate properly during the contest process ensures that everyone’s interests are protected until the matter is resolved.
Next, we will wrap up by showing you how to take the right next steps with help from a trusted team.
Protecting Your Rights and Moving Forward
Contesting a will can feel overwhelming at first, but with the right guidance, it becomes manageable. I have seen many clients start out anxious, only to find real peace of mind once they understood their rights and the steps involved.
If you believe you have not been treated fairly in a will, acting early gives you the best chance of protecting your entitlements.
Getting clear advice about your eligibility, gathering strong evidence, and understanding the process can make all the difference.
At Securator Legal, we focus on helping people like you move through these disputes with less stress and better outcomes. Our team understands how tough these situations can be, and we are here to guide you every step of the way.
If you would like to find out how we can help you with contesting a will or a family provision claim, you can get in touch with Securator Legal today. Let’s talk about your options and work out the best path forward together.
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