If you’re considering contesting a Will in Queensland, it’s often because you feel something isn’t right. Perhaps you’ve been left out entirely or haven’t received what seems fair. Whether you’re a spouse, child, or dependent, Queensland’s succession law provides a structured process to dispute a Will.
In this blog, we explain who can contest a Will, the legal grounds, how the process works, and what courts consider when making decisions.
If you’re ready to dispute a Will, or if you’re looking to protect your legacy from future disputes, get expert advice from our Wills and Estates Lawyers Gold Coast now.
What Does Contesting a Will in Queensland Mean?
In Queensland, contesting a Will means taking legal action to dispute how a deceased person’s estate has been distributed. A claim must fall under one of two legal categories:
Family Provision Applications (FPAs)
This type of claim argues that the deceased failed to make adequate provision for your proper maintenance and support. This can mean you were left out of the Will or received too little. A 2015 study shows that 81% of family provision claims in Australia and nearly 77% of FPAs in Queensland were successful.
Courts consider:
- Your financial position and needs
- The size of the estate
- Your relationship with the deceased
- Contributions you made to the deceased or their estate
- Any moral duty the deceased owed you
- Competing claims by other beneficiaries
Challenging the Validity of the Will
A Will can be disputed if there are concerns it wasn’t created properly or fairly. This might include:
- Lack of testamentary capacity: The person didn’t fully understand what they were doing when making the Will, for example, when they had dementia.
- Undue influence or coercion: Someone pressured or influenced them unfairly.
- Fraud or forgery: The Will was faked or altered without consent.
- Improper execution: The Will didn’t comply with formal requirements under Queensland law (e.g., not signed or witnessed correctly).
Each has different legal requirements and outcomes, so it’s important to know which type applies to your situation.
Are FPAs common in Australia?
- There is no publicly available number of FPAs in Queensland. However, Justice David Boddice expects the number of FPAs lodged in the Supreme Court of Queensland to increase
- A 2013 report showed that annually, there were 500 to 600 FPAs in Victoria.
- In NSW, there were 996 FPAs in 2024, lower than in 2023, as shown below:
Overall, the number of FPAs in NSW has increased over the last 5 years.
Who Can Contest a Will in Queensland?
You must be an eligible person to make a Family Provision Application, defined in Section 41 of the Succession Act 1981 as:
- Spouses: This includes legal spouses, de facto partners (including same-sex partners), and in limited cases, former spouses. In the 2015 study, FPAs involving a partner or an ex had an 88% success rate.
- Children: Biological, adopted, and stepchildren.
- Dependants: People who were wholly or substantially financially dependent on the deceased when they died, such as a parent or someone the deceased was supporting.
Notably, grandchildren are not automatically eligible unless they were dependants of the deceased. This reflects Queensland’s more conservative legal position compared to other states like NSW.
Steps in Disputing a Will in Queensland
Time Limits
| Time Frame | Action Required |
| Within 6 months of death | Notify the executor of your intention to contest the Will |
| Within 9 months of death | File your Family Provision Application (FPA) in court |
If you miss the deadline, your case may still proceed, but only in rare and exceptional circumstances. If the estate has already been distributed, your chances of success drop significantly.
Step-by-Step Process
Here’s what the process usually looks like:
- Get legal advice: A solicitor, such as our expert Wills and Estates Lawyers can assess your eligibility, the strength of your case, and your options.
- Notify the executor: This step must be completed within 6 months. It lets the estate know you may be lodging a claim.
- Try to resolve the dispute: Many claims are resolved through negotiation or mediation, avoiding court altogether.
- File your application: If no agreement is reached, your lawyer will file a formal application and affidavit in court.
- Mediation before court: The court usually requires both sides to try resolving the matter through mediation before going to trial.
- Go to trial (if needed): If mediation fails, the dispute proceeds to court, where a judge hears evidence and makes a decision.
- Receive judgment: The court decides whether you should receive provision from the estate and, if so, how much.
What Queensland Courts Consider
Courts take a balanced approach when deciding whether someone is entitled to more from an estate. These are the key factors:
- Your current and future financial needs
- Your health, especially if medical issues affect your ability to work
- Your relationship with the person who passed away
- Any financial or personal support you gave them
- The total size of the estate
- Competing claims by other eligible beneficiaries
- Any misconduct or behaviour that might affect your entitlement
Examples of Successful Will Contests in Queensland
These real-world examples help demonstrate when a court may find in favour of a claimant:
- A spouse excluded from a Will despite a long marriage and financial dependence
- A vulnerable child with disabilities left out of the Will without any explanation
- financially dependent on them but left out of the will
- A financially dependent parent whom the deceased supported but was left out of the Will
- A case where the deceased lacked testamentary capacity due to dementia
- A situation where undue influence was clearly exerted by a new partner
However, claims are less likely to succeed if you’re financially secure or the deceased had strong, documented reasons for your exclusion.
When Claims are Unsuccessful
In Manly v The Public Trustee of Qld & Anor [2008], a widow asked to receive all of her husband’s estate, rather than splitting it with his three sons. However, they had only been married for 3.5 years. The court said no.
Why She Lost Her Case
- They were married for only 3.5 years
- They had an arrangement: she would care for him in exchange for marriage and pension benefits
- She didn’t help buy the main asset (the house)
- The estate was relatively small (about $457,000)
- His adult sons had genuine financial and health needs
What This Means for You
Queensland courts use a two-step process when someone contests a will:
- First: Was the provision inadequate?
- If yes: What should the provision be?
The court looks at your relationship with the deceased, your contributions, your needs compared to other beneficiaries, and any prior arrangements.
Being a spouse doesn’t automatically entitle you to most of the estate – especially in shorter second marriages where adult children have legitimate needs.
How Much Does Contesting a Will in Queensland Cost?
The overall cost will vary based on how straightforward or complicated the dispute is. Simple cases cost less, while complex ones can be more expensive. Factors influencing cost include:
- Whether the case settles early through mediation
- The size of the estate
- Number of parties involved
- Whether court hearings are required
Typical costs range from a few thousand dollars to over $100,000 in more complex disputes. If your claim is successful, your legal costs are usually paid from the estate. If unsuccessful, you may be required to pay your own costs—and potentially those of the estate.
How Can I Reduce the Risk of Disputes Over My Will?
If you’re drafting a Will in Queensland, these strategies may help minimise future disputes:
- Leave fair support for those who may expect to be included
- Clearly explain your reasons for distributions, particularly when excluding someone
- Keep your will up to date—especially after major life events like marriage or a new child
- Transfer assets during your lifetime if appropriate
- Use legal structures, such as trusts, mutual Wills, or superannuation nominations
Having your Will professionally drafted by our expert Wills and Estates Lawyers Gold Coast, and supported by clear documentation is key to reducing the risk of future legal challenges.
Common Questions About Contesting a Will in Queensland
What simple mistakes invalidate a will?
Mistakes such as unclear wording, missing signatures, lack of witnesses, or failing to confirm the person is of sound mind can all lead to legal disputes later.
Does the estate pay for my legal costs when I contest a Will?
In Queensland, if your Will contest is successful, the estate typically pays your legal costs. If your claim isn’t successful, you may have to pay your own legal fees as well as some or all of the estate’s costs.
Can I still contest a Will even if I was a disinherited child?
Yes, disinherited children can contest through a Family Provision Application. Success depends on your financial needs, the estate size, and your relationship with the deceased. Courts typically award enough to meet reasonable needs, not necessarily equal shares.
How can I protect assets during a Will contest?
You can file a caveat against probate to temporarily block the executor’s authority. For estates already in probate, seek a court injunction to prevent asset distribution. Always notify the executor of your claim in writing as soon as possible.
Conclusion
Contesting a Will in Queensland is a legal process available to eligible individuals who believe they were unfairly left out or inadequately provided for. Whether making a Family Provision Application or challenging a Will’s validity, claimants must act within strict timeframes and meet specific legal grounds. Courts weigh several personal, financial, and relational factors when making their decisions, and each case is unique.
Expert Advice for Will Disputes in Queensland
Contesting a Will can be overwhelming, but we’re here to provide tailored legal help. We can assist you in these matters:
- Understanding your rights and options
- Assessing your eligibility to contest
- Managing paperwork and deadlines
- Negotiating fair outcomes
- Representing you in court if needed
We understand this could be a challenging time for you. We are on your side. Don’t hesitate to talk to one of our expert Gold Coast Wills and Estates Lawyers today for expert guidance.
