How to Contest a Will in Australia: Steps and Costs

What It Means to Contest a Will

Contesting a will means asking for greater provision from an estate or disputing whether the will is valid. A family provision claim leaves the will in place, with any court order changing the provision made for an eligible claimant. A validity dispute asks the court which testamentary document governs the estate.

The chosen route changes what the court must decide and which documents the lawyer files. It also changes the evidence needed and the costs risk if the claim fails. Discuss the grounds for contesting a will before committing to a route.

Two Checks Before You Start

Before paying for substantial legal work, confirm that your relationship to the deceased puts you within the relevant state or territory Act’s eligible categories. Being disappointed by a will does not establish eligibility. The guide to who can contest a will explains the relationship rules.

Every jurisdiction sets a strict filing deadline. A late claim requires the court’s permission, so obtain advice promptly and use the state-by-state time limits to identify the applicable rule. A letter to the executor does not replace filing proceedings.

Steps to Contest a Will

The process starts with documents and advice, then moves to notification, court proceedings and settlement discussions. For a family provision claim, follow this sequence with your lawyer.

1. Obtain the will. Ask the executor or the lawyer holding it for a copy. Give your lawyer any earlier wills you already hold and the executor’s contact details.
2. Check the probate record before choosing the procedural route. Probate is the court’s recognition of the will and the executor’s authority to administer it. Obtain the grant and estate inventory where available, and record whether an application remains pending.
3. Take legal advice. Explain what outcome you seek and provide the documents supporting it. Before signing the costs agreement, obtain an estimate for the early work, mediation and a contested hearing.
4. Write to the executor. Your lawyer identifies the intended claim, requests estate information and asks how distribution will be handled. Keep a copy of the letter and the executor’s response.
5. File and serve proceedings. Your lawyer prepares the originating document and evidence for the appropriate court. You usually sign or swear an affidavit describing the relevant facts. The filed documents must then reach the executor and anyone else the rules or court require.
6. Attend mediation. Bring instructions about the outcome you can accept and understand the costs already incurred. Mediation lets the parties negotiate privately with a mediator’s help. Any agreement needs written terms and, where required, court approval.
7. Prepare for a hearing if settlement fails. Follow the court’s timetable for further evidence and any witness attendance. Your lawyer prepares submissions, and you may give evidence and answer questions in court.

Identify the initiating document for the chosen route and court before filing. A NSW family provision claim starts by summons, while the Victorian Supreme Court uses an originating motion. A validity challenge follows probate procedures, which differ depending on whether a grant has issued.

In NSW, contested probate proceedings can begin by statement of claim. Give your lawyer the registry result before they select the required application.

The Supreme Court is the usual forum, although Victoria and Queensland also give lower courts family provision jurisdiction. A validity dispute follows probate procedures, so the document and evidence requirements differ from the family provision sequence.

Once the executor knows about a claim, distributing the disputed estate creates risk. Executors commonly retain enough assets to meet the claim and costs while continuing necessary administration. Ask for a written response about distribution, because notification alone is not a court order freezing every estate transaction.

Before moving beyond the initial stage, confirm that your lawyer has identified the route, the correct court and the filing deadline. If the executor withholds requested documents, ask your lawyer about the court’s disclosure process instead of letting correspondence delay filing.

Contesting a Will in NSW

A NSW family provision claim is brought in the Supreme Court under Chapter 3 of the Succession Act 2006. It starts by summons, accompanied by the claimant’s affidavit, a notice of eligible persons and an affidavit estimating costs through mediation.

Under Practice Note SC Eq 7, the first directions hearing sets the preparation timetable. Lawyers must confer beforehand about proposed directions. The Registrar can require the executor’s evidence about estate assets, liabilities and competing claims, helping the parties assess settlement.

The practice note directs matters to mediation unless the court orders otherwise. Parties are expected to attend personally absent exceptional circumstances. Arrive with a clear settlement position and an understanding of the legal costs.

NSW also has notional estate provisions. Subject to statutory conditions, the court can designate some property transferred before death as available for family provision. A transfer appearing in a bank statement therefore needs legal assessment even when the asset is absent from the probate inventory.

Contesting a Will in Victoria

Victorian family provision claims arise under Part IV of the Administration and Probate Act 1958. The Act gives the Supreme Court and County Court jurisdiction.

In the Supreme Court, proceedings start by originating motion in the Testators Family Maintenance List. The motion records the deceased’s details, the grant, the claimant’s relationship and the estate inventory value. Supporting evidence takes the form required for the estate, with a solicitor’s costs affidavit. The court’s TFM practice note explains that process.

A weak Victorian claim carries a real costs risk. The former special costs provisions in section 97 are repealed, so an unsuccessful claimant cannot assume the estate pays. The court can order a claimant to pay the executor’s costs as well as bearing their own fees. Obtain advice about the merits and settlement offers before spending further estate funds on litigation.

Contesting a Will in Queensland

Queensland family provision claims arise under Part 4 of the Succession Act 1981. The Supreme Court hears claims, and the District Court has jurisdiction within its statutory monetary limit. Court-specific directions govern the application and supporting affidavits.

Give the executor written notice of the intended claim, signed by the claimant or their solicitor. Section 44 makes that notice relevant to the executor’s protection when distributing assets. The notice needs to reach the executor, so retain evidence of delivery.

Giving initial notice and commencing proceedings are separate actions. After filing, provide written notice that proceedings have commenced or serve the application as required. A claimant must keep both tasks in the lawyer’s timetable.

The Supreme Court’s family provision directions provide for evidence about the estate and notice to affected people. That information supports a realistic settlement discussion before a hearing.

Contesting a Will in WA, SA and the Territories

The remaining jurisdictions use their own family provision legislation and Supreme Court procedures. Tasmania is included here because its process also differs from the three states above.

Jurisdiction	Family provision legislation	Hearing court
Western Australia	Family Provision Act 1972	Supreme Court of Western Australia
South Australia	Succession Act 2023, Part 6	Supreme Court of South Australia
Tasmania	Testator’s Family Maintenance Act 1912	Supreme Court of Tasmania
Australian Capital Territory	Family Provision Act 1969	ACT Supreme Court
Northern Territory	Family Provision Act 1970	Supreme Court of the Northern Territory

South Australia’s Succession Act 2023 replaces the former Inheritance (Family Provision) Act. A lawyer must apply the legislation governing the particular estate, including transitional rules where relevant.

Tasmania’s Act specifies an application by summons in chambers served on the estate representative. The ACT Act also requires notice of the application to the estate’s administrators. The NT Act and WA’s family provision guidance identify their local framework.

Use the local court’s forms and directions. NSW’s summons package and notional estate rules cannot simply be copied into another jurisdiction’s claim.

Documents to Gather Before You File

Gather the estate documents and your own financial records early. Your lawyer needs a factual account supported by documents, and incomplete figures make settlement harder.

• The last will and any earlier wills you hold.
• The grant of probate or letters of administration, if issued.
• The estate inventory and available valuations or liability records.
• Your income records and regular expenses.
• Details of your assets and debts.
• Correspondence about the estate and relevant records of lifetime payments.

The deceased’s bank statements can explain why the estate is smaller than expected. Years of statements may show lifetime gifts, transfers or repeated cash withdrawals. Those transactions can affect the estate value being assessed, or identify a separate recovery question. NSW’s notional estate rules make certain lifetime transactions especially relevant.

Obtain the records through the executor, the estate’s authorised representative or a lawful court process. The deceased estate bank account guide explains how to obtain statements. The family provision guide develops their use in the claim.

Consolidate statements from each bank into one transaction ledger before mediation. Retain the source PDF filename and page beside each entry, so a disputed payment can be found immediately. Separate transfers between the deceased’s own accounts from money paid to another person before calculating totals.

FinTrace saves lawyers and forensic accountants hours of statement review by consolidating large PDF bundles into a searchable Excel ledger and a clear findings report. The service flags suspicious transactions and follows transfers across supplied accounts. Source references put the supporting statement evidence beside the findings, ready for the professional’s analysis and settlement preparation.

How Much It Costs to Contest a Will and Who Pays

The cost of contesting a will depends on the legal work needed, the evidence and whether the parties settle. There is no single national average that tells you what your claim will cost. Obtain a written estimate for each stage and compare the likely net outcome after fees.

Legal fees usually dominate the budget. Court filing and hearing fees add to it, as do private mediation and any expert reports. A validity dispute requiring extensive witness evidence can follow a different cost path from a provision claim settled early.

Ask the lawyer to separate work through mediation from the additional work for trial. The estimate must explain disbursements, GST and any uplift fee. An early settlement can avoid the witness preparation and hearing costs in the later stage.

The estate often meets an executor’s properly incurred costs of administering and responding to a claim. A successful claimant may receive a costs order or negotiate a contribution through settlement. Neither outcome makes every claimant’s full legal bill automatically payable by the estate.

An unsuccessful claimant can bear their own fees and face an order to pay the executor’s costs. Unreasonable conduct or rejection of a settlement offer can worsen the position. The NSW Judicial Commission’s costs guidance identifies the court’s discretion and the family provision costs principles in Pethers v Pethers (No 2) [2025] NSWSC 561.

A no-win, no-fee agreement makes payment of specified legal fees conditional on the defined successful outcome. Read what counts as success before signing. Settlement can trigger payment, and ending the retainer early may trigger fees under its terms.

The Victorian legal regulator’s conditional costs guidance explains that clients can still owe disbursements or the other party’s costs after losing. An uplift is calculated on legal fees, not on the inheritance received. Ordinary estate litigation under the Uniform Law does not permit a lawyer to charge a percentage of the payout as a contingency fee.

Mediation is a normal settlement stage because the parties can agree an outcome while avoiding further hearing costs. A settlement deed usually records the provision, payment arrangements and costs allocation, with releases and steps to end proceedings. Court approval is required in some cases, including where protected parties’ interests need approval.

Financial preparation is one part of that budget. FinTrace performs statement analysis at a fraction of the cost of manual review or engaging a forensic accountant for the same work. A per-matter quote uses a fixed base fee plus a per-page component, allowing the firm to budget that work separately from legal representation.

Defending a Will Contest

An executor responds to a family provision claim on behalf of the estate, supplies financial information and protects estate assets while the dispute proceeds. The executor’s task includes helping the court assess the claim. Fighting every allegation at any cost can reduce what remains for all beneficiaries.

Where siblings dispute their shares, the executor first obtains advice on the claim letter and acknowledges it. The estate then provides relevant documents and preserves assets. The executor identifies affected beneficiaries for notification. After filing, the executor gives the required evidence and follows directions about notifying other people.

For mediation, calculate the estate available after liabilities and expected costs. Obtain instructions about a settlement proposal and any consent needed. Record the offer’s costs terms as carefully as the proposed provision.

An executor may also be a beneficiary. Keep that personal interest distinct from the estate’s response. Where the dispute is between beneficiaries, the executor generally takes a neutral position between their competing interests while presenting the estate information the court needs.

A clause cutting out someone who contests the will does not itself remove the statutory right to seek family provision. Its effect on a particular gift is a separate question requiring construction of the clause and the applicable law. Give your lawyer the whole will, including that clause, before deciding how to respond.

Before agreeing a settlement, confirm the deed addresses payment, costs and the end of proceedings. The executor can then complete distribution under the agreed terms and any court orders.