Challenging a Will vs. Contesting a Will - the basics

When someone passes away, disputes about their estate can arise—especially if there are concerns about how their will was prepared or who stands to benefit. In Queensland, there are two main legal avenues for addressing these concerns: challenging a will and contesting a will. Although these terms are often used interchangeably, they refer to very different legal processes. 

Understanding the difference between challenging and contesting a will is essential for anyone involved in estate planning, administering an estate, or concerned about whether a will is valid or fair. 

Challenging a Will 

Challenging a will refers to disputing the validity of the will itself. This type of dispute alleges that the will is not legally valid and should not be granted probate. In Queensland, common reasons for challenging a will include: 

• Lack of testamentary capacity: The will-maker (testator) did not have the mental capacity to understand the nature and effect of making a will. 

• Undue influence: The testator was coerced, pressured, or manipulated by another person into signing a will that does not reflect their true intentions. 

• Fraud or forgery: The will may have been tampered with or created fraudulently. 

To challenge a will, the objector must file a caveat in the Supreme Court of Queensland before probate is granted. This prevents the court from issuing a grant of probate until the matter is resolved. 

Challenging a will is a complex legal process and typically requires strong evidence, such as medical records, witness statements, or proof of suspicious circumstances. If successful, the court may declare the will invalid. In such cases, an earlier valid will may be used, or the estate may be distributed under the laws of intestacy. 

Contesting a Will 

Contesting a will is a different legal process that accepts the will is valid, but argues that it does not adequately provide for a person who has the legal right to claim from the estate. This is also known as a family provision application. 

In Queensland, eligible applicants include: 

• Spouses (including de facto partners) 

• Children (including adult children and stepchildren) 

• Dependents 

To contest a will, an applicant must prove they have not received adequate provision for their proper maintenance and support, considering the size of the estate and their personal and financial circumstances. Written notice to make an application must be made within six months of the date of death and an application must be filed within nine months of the date of death. 

These cases are assessed on a number of factors, including: 

• The financial needs and personal circumstances of the applicant 

• The nature of the relationship with the deceased 

• Any obligations or responsibilities owed by the deceased 

• The size and nature of the estate 

Contesting a will can lead to a negotiated settlement, mediation, or a court decision. If successful, the court may order that additional provision be made from the estate. 

Why the Difference Matters 

Understanding whether a will should be challenged or contested is crucial to choosing the right legal strategy. Challenging a will addresses whether the will itself is legally valid. Contesting a will deals with fairness and adequate provision for dependents. 

Both processes can be emotionally taxing and legally complex. They can also significantly impact the administration of the estate, cause delays, and reduce the amount available to beneficiaries. 

How to Protect Against Will Disputes 

Whether you are preparing your own will or acting as an executor, here are a few ways to help reduce the risk of future disputes: 

• Work with an experienced solicitor to ensure the will is drafted clearly and properly. 

• Keep documentation about the testator’s capacity, especially in later life. 

• Consider including a statement of reasons if unequal gifts are made. 

• Update the will regularly to reflect life changes, such as divorce, remarriage, or the birth of children. 

Final Thoughts 

Will disputes are becoming increasingly common, especially in blended families and complex financial situations. Understanding the distinction between challenging and contesting a will helps beneficiaries and executors make informed decisions when issues arise. 

If you have concerns about the validity of a will, or if you believe you haven’t been adequately provided for, it’s essential to seek legal advice quickly. 

For tailored guidance on challenging or contesting a will in Queensland, contact Vicca Law. We offer compassionate and strategic support to help you protect your legal rights and navigate estate disputes with clarity and confidence. 

Visit www.viccalaw.com.au or email us at lidia@viccalaw.com.au to book a free consultation.