Grounds to Contest a Will: Evidence Each One Needs

Reasons to Contest a Will

A validity challenge asks whether the document is the will-maker’s legally effective will. Lack of capacity, coercion, fraud, forgery and lack of knowledge and approval can undermine validity. Defective execution or an effective later will can also change which document governs the estate.

A provision claim asks whether an eligible person received adequate provision for their proper maintenance and advancement. It accepts the will’s validity. Unfairness alone answers neither question: a disappointed beneficiary needs evidence of a validity defect or a shortfall that meets the applicable provision law.

Two unsuccessful cases show why the claim type changes the proof required.

Decided case	Claim and decisive evidence	Result
Lim v Lim [2023] NSWCA 84	A validity challenge alleged incapacity and lack of knowledge and approval. Purposeful instructions and the explanation of the intended distribution supported the will.	The Court of Appeal restored the later will. Medical, language and hearing concerns did not establish the alleged defects.
Vigolo v Bostin [2005] HCA 11	A family provision claimant relied on contributions to the family farming business and promised inheritance. Earlier financial benefits and compensation for those contributions undermined the claimed shortfall.	The High Court dismissed the appeal. The claimant had not established inadequate provision for proper maintenance and advancement.

These decisions contrast proof of the will-maker’s decision with proof of a claimant’s financial position. They do not measure the frequency of successful challenges.

This guide assumes standing has been established. The separate guide to who can contest a will covers that preliminary question.

Lack of Testamentary Capacity

Lack of testamentary capacity concerns the will-maker’s ability to understand the decision when the will was signed. They must understand making a will and its effects, the broad extent of their property and the claims of potential beneficiaries. A mental disorder or delusion must not distort the disposition in the way described in Banks v Goodfellow (1870) LR 5 QB 549.

Age, a diagnosis or dependence on a carer does not establish incapacity by itself. Justice Lindsay’s explanation of the capacity test ties it to the actual testamentary decision.

Obtain medical and aged care records around signing. Put the drafting solicitor’s file notes beside accounts from people who saw the will-maker then. Evidence about an unrelated period has less explanatory value unless it helps establish their condition at execution. The testamentary capacity guide covers the full test and assessment.

Undue Influence and Fraud

Undue influence over a will requires coercion that overbears the will-maker’s free choice. Persuasion, affection and a wish to please a child do not establish that ground. The challenger carries the burden of proving coercion. Justice Lindsay’s probate paper explains that burden through Tobin v Ezekiel.

Evidence can include isolation from family, control of the will-maker’s money or a beneficiary’s involvement in arranging the will. Record who controlled visits and communications. Identify instructions, threats or pressure that connect that control to the testamentary decision. Opportunity to influence someone is not proof that their choice was overborne.

Fraud involves deception that affects the will-maker’s decision. Preserve the alleged false statements and evidence showing who made them, whether the will-maker believed them and how they affected the will. Forgery challenges the authenticity of the document or signature. It calls for the original will, genuine handwriting samples and, where needed, document examination.

The undue influence guide examines the law beyond this probate ground.

Lack of Knowledge and Approval

Lack of knowledge and approval asks whether the will-maker understood and accepted this will’s contents. A person can have capacity yet sign a document that does not express their instructions.

Suspicious circumstances call for affirmative proof from the person seeking probate. Examples include a beneficiary choosing the lawyer, supplying instructions or remaining in the room when the will is signed. Language difficulties or unexplained changes can also require closer examination of how the contents were explained.

In Nock v Austin (1918) 25 CLR 519, people involved in preparing the will received substantial benefits. The High Court upheld the will because the evidence satisfied the court that the will-maker knew and approved its contents. Suspicion prompts scrutiny. It does not decide the result.

Collect the instructions, draft versions, explanation notes and evidence from the solicitor or interpreter. Match the final wording to what the will-maker actually approved.

A Will That Was Not Properly Made

A will that fails the applicable signing and witnessing rules raises an execution issue. For ordinary execution in NSW, Victoria and Queensland, the will must be written and signed with testamentary intention. The will-maker can sign personally or direct another person to sign in their presence.

The will-maker’s signature must be made or acknowledged before at least two witnesses present together. At least two witnesses must attest and sign in the will-maker’s presence. Applicable remote-witnessing rules must also be considered if the signing occurred remotely.

The relevant provisions are NSW’s ss 6 and 8, Victoria’s ss 7 and 9 and Queensland’s ss 10 and 18. The NSW Supreme Court’s probate guidance, Victorian Wills Act and Queensland Succession Act explain those rules.

In NSW, section 8 of the Succession Act 2006 gives the court a dispensing power for an informal document. An application asks the court to recognise the document despite defective execution. An unsigned document gains no automatic validity.

Failure to comply does not automatically end the inquiry. An unsigned draft or note can sometimes be admitted as an informal will. The court must be satisfied that the deceased intended that document to be their will. A record of possible instructions for a future will does not establish that intention by itself.

Preserve the document and evidence of its creation, storage and adoption. Statements the deceased made about it can help establish intention. Search for later wills and evidence of revocation too: an effective later will or revocation can displace the document currently relied on. Put the sequence of documents beside the witness evidence before deciding which will to challenge.

Inadequate Provision for an Eligible Person

Inadequate provision concerns the claimant’s proper maintenance and advancement under a valid will. The question is whether the provision meets that standard in the claimant’s circumstances, applying the relevant state legislation.

The adequacy question in Singer v Berghouse (1994) 181 CLR 201 is discussed in the High Court’s Vigolo v Bostin judgment. It requires an assessment of provision and circumstances, not a fresh division based only on fairness.

Document the claimant’s income, assets, debts and needs. Consider the estate’s size, the relationship with the deceased and competing claims. Evidence of ongoing support or contributions can help explain the financial relationship. The family provision claim guide covers the claim and its financial evidence in more detail.

Evidence Needed to Contest a Will

The evidence needed to contest a will must establish the particular defect or financial shortfall alleged. Start with the documents and witnesses for that ground, then check whether the same records support another ground.

Ground	Main documents	Witness evidence
Lack of capacity	Medical and aged care records, solicitor’s notes around signing	Treating clinicians, drafting solicitor and people who saw the will-maker
Undue influence	Messages, visit records, instructions and financial records showing control	People who observed pressure, isolation or the signing arrangements
Fraud	Alleged false statements and records testing their truth	Speaker, recipient and anyone who can connect the deception to the will
Forgery	Original will, genuine signatures and document-examination material	Attesting witnesses and a handwriting or document examiner
Knowledge and approval	Instructions, drafts, translation records and explanation notes	Solicitor, interpreter and people present when contents were explained
Defective execution or informal will	Original document, signing records and evidence of testamentary intention	Attesting witnesses and people who heard the deceased adopt the document
Later will or revocation	Later documents and records of their creation or destruction	Drafting solicitor, custodians and witnesses to the relevant acts
Inadequate provision	Claimant’s financial records, estate accounts and evidence of support	Claimant and people able to explain needs, care or contributions

For evidence needed to contest a will in Victoria, distinguish mandatory considerations from matters the court may consider. Under s 91A of the Administration and Probate Act 1958, the court must consider the will, reasons for its dispositions and other evidence of intentions towards the claimant.

Section 91A also permits consideration of relationships and responsibilities, estate liabilities, financial resources and future needs, disability and age. Further matters include contributions, earlier benefits, dependency, another person’s maintenance obligations, conduct and the effect on other beneficiaries. Prepare the claimant’s evidence against the relevant factors. Preserve the deceased’s reasons even when the client disputes them.

Bank statements can support several lines of inquiry at once. Large transfers to one beneficiary can explain financial control or earlier benefits. Cash withdrawals near the will date can help identify transactions requiring explanation. Regular payments to the claimant can document dependency. A transfer’s timing and recipient must be assessed with the surrounding evidence before drawing a conclusion about the will.

A ledger with a source statement page for every transaction makes the financial chronology easier for the other side and the court to test. They can move directly from an allegation to the supporting entry. A total without its underlying transactions makes it harder to distinguish gifts, loans and transfers between the deceased’s own accounts.

FinTrace saves estate lawyers and forensic accountants hours of statement review by consolidating supplied PDFs into a searchable ledger and clear findings report. Suspicious transactions are flagged, with the source PDF filename and page at hand. That gives you the financial chronology and supporting evidence without rebuilding it from the statement bundle.

How Hard It is to Win

How hard it is to win depends on the ground and the evidence, not the size of the family disagreement. Validity challenges require proof about a past decision, often after the only person who can explain it has died. Contemporary records and independent witnesses therefore carry more weight than assumptions drawn from an unequal result.

The person seeking probate bears the ultimate burden of establishing due execution, capacity and knowledge and approval. Ordinary presumptions can assist them. A challenger needs evidence that puts those matters in issue.

The challenger bears the burden of proving coercion, fraud or forgery. A person relying on an informal document must establish the required intention. A provision claimant must establish the applicable statutory basis for further provision.

The NSW Court of Appeal’s summary of Lim v Lim [2023] NSWCA 84 shows why an apparent problem does not determine validity. The appeal restored a will despite concerns about medical condition, hearing and language. Evidence of the deceased’s purposeful instructions supported capacity and knowledge and approval. Probate uses the civil standard, with the strength of evidence responsive to the allegation.

Provision claims address financial circumstances that can be documented now. They still depend on the claimant’s needs, the deceased’s responsibilities and competing demands. Settlement is common: the Victorian Law Reform Commission’s succession report describes widespread resolution before trial. It identifies litigation expense, uncertain outcomes and family stress as reasons to settle. An estate can settle to preserve its remaining value without accepting every allegation.

A general success rate for contesting a will in NSW would combine different questions. Validity challenges concern which will governs the estate, while provision claims concern the claimant’s entitlement under a valid will. Settlement can produce an agreed payment without a judgment accepting the alleged ground.

The NSW Supreme Court’s provisional statistics record 960 family provision filings and 940 disposals for 2025. Those totals cover different case groups and do not identify how many claimants obtained further provision. Dividing disposals by filings would measure neither success nor settlement. Reported judgments also exclude many settlements, so selected decided cases cannot establish a general percentage.

Should You Contest a Will?

Contest a will when an identified ground has evidence capable of supporting the remedy your client needs. Before recommending proceedings, use this decision checklist.

• Identify the recognised ground and the outcome it could produce.
• Locate the records already held and witnesses with direct evidence.
• Establish what an earlier will or intestacy would give the client if this will were invalid.
• Compare the estate’s size with the likely work and costs risk.
• Discuss the family relationships and ongoing arrangements litigation would affect.

A weak claim can leave the claimant paying costs. An unequal inheritance does not justify proceedings on its own. Use the guide to contesting a will once the ground and evidence are clear. Give the client advice that separates the evidence already held from the facts still needing proof before committing the estate and family to litigation.