Two different things get called "contesting a will"
They are not the same argument, they are decided on different grounds, and the deadlines differ.
Family provision claim
The will is accepted as valid. An eligible person argues it does not make adequate provision for their proper maintenance and support.
Validity challenge
The will itself is attacked — lack of testamentary capacity, lack of knowledge and approval, undue influence, fraud, or improper execution.
The deadlines that end most claims
Six months to notify, nine months to file
Written notice of an intention to apply should be given to the executor within 6 months of the date of death.
The application must be filed in the Supreme Court of Queensland within 9 months of the date of death — section 41(8), Succession Act 1981 (Qld).
The court has a discretion to hear a late application, but it is not something to plan around. Once an estate has been properly distributed, even a strong claim may have nothing left to attach to.
Who can bring a family provision claim
Only an eligible person can apply. In Queensland that means:
- A spouse, including a de facto partner
- A former spouse in defined circumstances
- A child, of any age
- An adopted child
- A stepchild
- A dependant being maintained by the deceased — limited to a parent, the parent of the deceased's child under 18, or a person under 18
Two points surprise people. Adult children are eligible — there is no age limit, and a financially independent adult child can bring a claim, though independence affects the outcome. And a stepchild can claim as a "child" without proving financial dependency, which is one reason blended families so often end up in estate disputes.
What the court weighs
The court asks two questions in sequence: was adequate provision made for the applicant's proper maintenance and support, and if not, what provision should now be made? In answering, it considers matters including:
- The applicant's financial position and needs
- The size and nature of the estate
- The relationship between applicant and deceased
- Contributions the applicant made to the estate
- The needs of other beneficiaries
- Any provision already made during the deceased's life
- The applicant's age, health and earning capacity
- Conduct of the applicant, in limited circumstances
A claim is not an argument about fairness in the abstract. It is about need measured against the size of the estate. A modest estate divided unequally between wealthy adult children is a poor claim. A large estate leaving nothing to a child with a disability is a strong one.
Challenging the validity of a will
A validity challenge says the document should not operate as a will at all. The usual grounds:
- Lack of testamentary capacity — the Banks v Goodfellow test
- Lack of knowledge and approval of the contents
- Undue influence — coercion, not mere persuasion
- Fraud or forgery
- Improper execution under section 10
- Revocation by a later will or by marriage
Undue influence is the ground most often alleged and least often established. Influence is not enough — the law requires coercion overbearing the will-maker's own judgement. A carer who encouraged an elderly person to reconsider their will has not necessarily done anything unlawful.
If you are concerned a grant may issue before you can investigate, a caveat can be lodged in the Supreme Court registry to prevent it. That is a step with costs consequences if it turns out to be unjustified, so take advice before lodging one.
If you are the executor facing a claim
Your role is to defend the will, not to take sides between family members. An executor who campaigns for one beneficiary against another risks costs personally.
On receiving notice of a claim, stop any distribution and get advice. Most family provision matters resolve at mediation, and the court expects the parties to have genuinely attempted it. Litigation is paid for out of the estate everyone is arguing about, which is a strong reason for all sides to settle.
What it costs
Written costs agreement before we start, with an early and candid view on prospects. We will tell you if a claim is not worth running.
- Fixed fee for an initial assessment
- Stage estimates thereafter
- Most matters resolve at mediation
- Costs orders in estate matters are discretionary
- Estate costs usually come from the estate
- Honest advice on whether to proceed
Do not assume the estate pays everyone's costs. That was once broadly true and is no longer — an unsuccessful applicant may be ordered to pay costs personally, particularly where the claim was weak or the estate was small.
Frequently asked questions
For a family provision claim, written notice of your intention to apply should be given to the executor within 6 months of the date of death, and the application must be filed in the Supreme Court of Queensland within 9 months of the date of death under section 41(8) of the Succession Act 1981. The court has a discretion to allow a late application, but it should not be relied on.
Only an eligible person: a spouse including a de facto partner, a former spouse in defined circumstances, a child of any age, an adopted child, a stepchild, or certain dependants who were being wholly or substantially maintained by the deceased (a parent, the parent of the deceased's child under 18, or a person under 18). Adult children are eligible regardless of age, and stepchildren can claim as a 'child' without proving financial dependency.
Yes. There is no age limit on a child's eligibility in Queensland. Financial independence does not disqualify an adult child, though it is highly relevant to the outcome, because the court asks whether adequate provision was made for the applicant's proper maintenance and support measured against their need and the size of the estate.
Coercion, not persuasion. The law requires influence that overbore the will-maker's own judgement, so that the will reflects someone else's wishes rather than their own. It is the ground most often alleged and least often established. Encouraging an elderly person to reconsider their will is not, by itself, undue influence.
Not necessarily. It was once broadly true that estates bore the costs of these disputes, and that is no longer the position. An unsuccessful applicant may be ordered to pay costs personally, particularly where the claim was weak or the estate was small. Costs in estate matters are discretionary.
A caveat can be lodged in the Supreme Court registry, which prevents a grant issuing until the caveat is resolved. It is a serious step with costs consequences if it turns out to be unjustified, so take advice before lodging one.
More information
If you’ve been unfairly left out of a Will, received less than expected, or are involved in a dispute over an estate, South Geldard Lawyers can help. Our experienced estate litigation team provides practical legal advice on Will disputes, Family Provision Claims and estate litigation throughout Queensland.
Experienced Will Dispute Lawyers
Disputes over a loved one’s estate can be stressful, emotional and time-sensitive. Whether you are considering contesting a Will or defending an estate against a claim, obtaining legal advice early is essential.
Our lawyers provide practical, strategic advice to help you understand your rights and the strength of your position before taking action.
- Contesting a Will
- Family Provision Claims
- Challenging the Validity of a Will
- Defending Estate Claims
- Executor & Administrator Disputes
- Beneficiary Disputes
- Estate Litigation
- Mediation & Court Proceedings
We act for clients across Rockhampton, Yeppoon, Gladstone, Emerald and throughout regional Queensland.
Unsure If You Have a Claim?
Not every Will can be challenged—but many people are surprised to learn they may have legal rights.
If you have been left out of a Will or believe adequate provision has not been made for you, we can assess your circumstances and explain your options.
The sooner you obtain advice, the better your chances of protecting your interests, as strict time limits apply in Queensland.
This page is general information about the law as it applies in Queensland, current as at 2026. It is not legal advice and does not take your circumstances into account. Figures set by regulation are indexed and change. Speak to one of our lawyers before acting.