What Happens When You Contest a Will? A Practical Guide for Queenslanders
What happens if you’ve been left out of a Will or feel the outcome doesn’t reflect your circumstances?
It’s a situation more common than people realise. Emotions run high, questions arise, and many people turn to the idea of contesting a Will in search of fairness.
But here’s the reality: contesting a Will isn’t about fairness in the everyday sense. It’s about whether the law recognises that you have not been adequately provided for—and whether your circumstances justify a claim and a deviation from the wishes of the testator.
Let’s break down what that really means.
What Does It Mean to Contest a Will?
When you are contesting a Will you are asking the court to adjust how an estate is distributed because you believe were not adequately provided for. This known as making a family provision claim. You must be an eligible person to make a claim. An eligible person for the purposes of the Succession Act 1981 includes a spouse (including a de facto spouse), child or someone who is financially dependent on the deceased.
Importantly, the Court does not rewrite Wills simply because someone feels the outcome is unfair. Instead, it applies a legal test based on specific factors.
The Biggest Factor: Financial Need
One of the most important considerations is financial need.
The court will assess whether you genuinely require further provision from the estate to support yourself. For example, a stronger claim may involve someone who:
Is on a disability pension
Is caring for young children
Has limited income or financial resources
Previously received financial support from the deceased
This is often the hardest hurdle for applicants to overcome.
Does the Size of the Estate Matter?
Yes—significantly.
Contesting a Will can be expensive, sometimes exceeding $100,000 if the matter proceeds to trial. That means:
Larger estates may justify the cost and risk
Smaller estates may not leave enough to make a claim worthwhile
The Courts are generally less receptive to claims against modest estates, particularly where financial need is not clearly established.
Your Relationship with the Deceased
The court will closely examine your relationship with the deceased.
This goes beyond whether you are a child or spouse—it includes:
The nature and history of the relationship
Whether you were estranged or close
Whether the deceased supported you financially
Your role in their life
If the deceased regularly provided financial assistance and then left you without provision, this may support your claim.
Competing Beneficiaries
It’s not just about you—the court must also consider others who have been provided for in the estate.
This may include:
A spouse or de facto partner
Children, particularly minors
Other dependants
Where there are vulnerable beneficiaries, such as young children, can often significantly influence the outcome.
The Reality of the Process
Many people assume contesting a will means going straight to court. In reality, most matters follow a more structured path:
Initial negotiations with the executor
Attempts to resolve the matter early
Mediation
Court proceedings (if necessary)
In our experience, most cases resolve at mediation, largely because legal costs are high and outcomes are uncertain.
Costs: A Common Misconception
A frequent assumption is that legal costs are always paid from the estate.
This is not always the case.
In some situations—particularly where:
A claim is weak or lacks merit
A reasonable settlement offer is refused
…the court may order the applicant to pay their own costs, or even contribute to the other party’s costs.
This is a significant financial risk and should be carefully considered.
Strict Time Limits You Cannot Ignore
Timing is critical in making an application for family provision.
In Queensland, the timeframe under the Succession Act 1981 provides that you have:
6 months from the date of death to notify the executor that you intend to make an application for provision
9 months from the date of death to file your claim for provision
Acting early is essential.
Why Legal Advice Matters
Every estate dispute is different.
There is no one-size-fits-all answer, and outcomes depend heavily on your personal circumstances, financial position, and relationship with the deceased.
Speaking with an experienced estate lawyer, like Lidia Vicca, can help you understand where you stand and what your next steps should be.
Final Thoughts
Contesting a Will is not a simple or straightforward decision. It involves legal thresholds, financial considerations, and often emotional complexity.
While the law provides a pathway for those who have not been adequately provided for, it also sets a high bar, particularly when it comes to financial need and overall circumstances.
If you are considering making a claim, acting early and seeking the right advice can make a meaningful difference.
If you’d like to understand your position or explore your options, book a free consultation with Lidia Viccatoday.