What are the grounds for contesting a will?
Wills and Estates: 12 October 2025
Challenging a will is a legal process that allows some people the framework to dispute how a deceased person’s estate has been distributed. A person may contest a will, or contest what has been distributed under intestacy laws (in situations where there is no will, and the court has used a formula to determine who receives assets, and in what proportions).
If you wish to contest a will, you must have legal grounds to do so. You can’t do it simply because it seems unfair to you. For a start, you need to be considered an ‘eligible person’ before you can challenge a will, and secondly, you need to provide evidence that supports your claim. (A lawyer will look at your case carefully and confirm whether or not you have grounds to contest.)
A limited timeframe is available to challenge a will, otherwise assets may be distributed to other beneficiaries. It is a complex process which occurs at what is often an emotional juncture, so it helps to have legal support to ensure timelines are met and negotiations are conducted as smoothly as possible, without additional stress.
In this article, we will look at the reasons why you may challenge a will, what evidence you need to supply to support your claim, and relevant timelines for contesting a will. We’ll also look at the process of contesting a will, and whether or not using a lawyer is helpful (spoiler alert: we believe it is wise to seek legal support, and we’re not just saying that because we’re a law firm).
When can you contest a will?
A will can be contested for a limited range of reasons. In all scenarios, clear grounds for contesting the will must be established.
Grounds for disputing a will include:
Reason #1: You’ve been inadequately provided for (a Family Provision Claim)
In this scenario, you may contest a will because you believe the deceased didn’t adequately provide for your personal and financial needs. For this claim to be valid, you would need to be able to prove that the deceased had a moral duty to provide for you.
To support a claim of inadequate provision, you would need to prove that:
You are eligible to make the claim
The deceased had a moral duty to provide you with financial support
What you were left in the will or intestacy (if anything) was insufficient and does not meet your genuine needs.
Proving Eligibility
Succession laws vary depending on where you reside in Australia. Each state/territory will have unique definitions of an ‘eligible person’ in regards to contesting a will. Generally, an eligible person would include:
Spouse or domestic partner of the deceased (this includes same sex partners)
Children (including stepchildren and adopted children).
A former spouse or former domestic partner (in some circumstances).
A grandchild or member of the household who was dependent on the deceased.Certain other dependents.
To contest a will, you need to provide evidence to support your eligibility claim. Documents you may need to provide would include:
Marriage certificate for those married
Relationship certificate for de facto couples and those who have registered a ‘caring relationship’ (e.g. long-term carers, relatives or close friends who provided substantial, ongoing care to the will-maker)
Birth certificate or adoption papers to prove a parental relationship
Documents showing financial dependency (e.g., bank statements, receipts).
Proving the deceased had a moral duty to provide you with support and/or maintenance.
This is based on the idea that certain relationships carry an expectation that the deceased would have continued to provide financial or other support, even after their passing.
For this claim to have a chance of success, you need to be able to show that you had a significant and meaningful connection to the deceased and that they had a legal and moral obligation to ensure you were provided for in their will.
In addition, you would also need to show:
Examples of unpaid care you provided or of financial contributions – This might include money, time, or effort spent assisting the deceased, such as maintaining their property, caring for them during illness, driving them to medical appointments, or contributing to their household or business.
Evidence of promises made by the deceased – If the deceased told you verbally or in writing that they wanted to provide for you in their will, this can support your claim.
Proving inadequate provision
When you contest a will or intestacy on the basis that you believe what you were left with fails to adequately cover your needs and/or maintenance, you need to provide evidence to support your claim. Evidence may include:
Proof of your contributions, such as proof of unpaid caregiving and renovations
Your personal financial records, including bank statements, mortgage documents and tax returns.
In this scenario, the court will assess the size of the deceased’s estate, the requirements of other beneficiaries, any competing claims, contributions you made to maintaining the deceased’s assets or to building those assets, and your financial situation (liabilities, assets and income).
Reason #2: You believe the will is invalid
You may believe the will is invalid for any of the following reasons:
The deceased’s mental capacity was affected (referred to as a lack of ‘testamentary capacity’)
The deceased made the will under coercion or undue influence
The will was forged or fraudulently altered
The will was not executed correctly
Lack of testamentary capacity
You can contest a will if you believe the deceased’s mental capacity was affected when writing and signing their will, and they were likely unable to understand what they were doing.
The court will assess whether or not the will-maker:
Had mental capacity to make a will, and whether their decisions were affected by mental illness or delusions
Understood that they were making and signing a will
Knew what property and assets they owned, and included them in the will
Recognised who might reasonably be expect to be listed as a beneficiary in their will (e.g., family).
To prove a lack of testamentary capacity, you will need to provide evidence that supports this claim. This could include:
Medical records (e.g., hospital reports or a written dementia diagnosis)
Testimony from medical specialists and/or carers.
Witness statements about the testator’s mental state.
The deceased made the will under coercion or undue influence
In this scenario, your claim would be that the willmaker was pressured into making a certain person a beneficiary, or that they were manipulated into making the will in a way that didn’t reflect their true intentions.
Proving coercion and undue influence can be difficult. Outright coercion may be easier to prove, particularly if you have evidence of written threats/text messages, and/or of physical harm to the testator. Undue influence via subtle manipulation or psychological control may be more difficult to prove.
Evidence you can supply to support your claim could include:
Medical records or police reports that show physical harm to the testator by a beneficiary.
Financial records that demonstrate sudden, unusual transfers of assets.
Texts, letters or emails that demonstrate manipulation and/or threats to the testator.
A pattern of coercion and control. For example, the testator is restricted from being in contact with family members or other carers.
Witness statements that outline the isolation of the testator or suspicious behaviour by their beneficiary.
Copies of previous wills, which may reveal the deceased’s previous intentions or patterns of giving, which have suddenly changed in the new will.
The will was forged or fraudulently altered
If you have reason to believe that the will was not written by the deceased, or that their original will has been changed by someone else, you will need to gather evidence to support this. Evidence could include:
Handwriting analysis to prove a signature was forged.
Evidence that the testator was tricked into signing without understanding the will’s contents.
Original copies of previous wills, that can be used for comparison. (Your lawyer can assist you to obtain copies of these wills if they were stored with other legal firms. This process may take some time, so it is essential to act quickly.)
The will was not executed correctly
There are strict requirements when it comes to a properly-executed will. If these rules aren’t followed, the will is open to challenge. Errors that may render a will invalid include:
The will was not signed by the testator (the will-maker).
Two independent witnesses were not present when the will-maker signed the will.
The witnesses didn’t sign at the same time as the will-maker.
Either or both of the witnesses were beneficiaries, which is not recommended as it can create a conflict of interest and raise questions about undue influence
Wording in the will is contradictory or unclear, making it impossible to understand the will-maker’s intentions.
The will-maker made an error in the will, as they didn’t understand the legal terms and/or signed the wrong document.
This particular will was revoked and replaced by a later will.
The will was created digitally, and did not meet the strict requirements for a will in that format.
The will was unsigned, or contained drafts and notes that weren’t completed or signed.
In regards to providing evidence of the above, you would need:
Statements from witnesses confirming the signing process didn’t follow the law.
Proof a beneficiary acted as a witness.
Documentation showing remote witnessing wasn’t compliant with current rules.
Who can contest a will in Victoria?
As mentioned earlier, you must be an ‘eligible person’ under your state or territory’s succession laws. In Victoria, an ‘eligible person’ includes:
Partners, including same sex partners
Spouses
Children
Stepchildren
Certain dependents
(The Administration and Probate Act 1958 (Vic))
Disputing a will - The Process
Do you need to hire a lawyer to dispute a will?
Working with a lawyer when you contest a will in Victoria is not essential, although it is recommended that you do so. The process of challenging a will involves strict deadlines, legal requirements, evidence and eligibility rules. All up, it is a complex process that can absorb your time and money. A lawyer can help:
Explain what are the legal grounds for contesting a will in Victoria and ensure that you have a valid claim in the first place (you meet eligibility requirements and your claim is grounded)
Help you dispute the will in an efficient manner, meeting required deadlines and avoiding (if possible) dragged-out, emotionally-taxing legal challenges.
Assist in gathering evidence to support your claim, and presents that evidence
Provide you with an estimate of likely costs involved with your challenge, as well as help you to understand likely outcomes
Represent you during complex negotiations and/or court proceedings
How to contest a will in Australia
In essence, the same requirements apply whether you contest a will yourself or whether you hire a lawyer. The difference is in how much work you will have to do yourself when it comes to gathering evidence, whether or not you want to attend negotiations and potentially, court, or you’d prefer a lawyer did it for you.
DIY vs Using a Lawyer to Contest a Will
Contesting a will is a complex and time-sensitive process. Hiring a lawyer who is experienced in wills and estates can improve your chances of a successful claim, whereas the DIY approach can be confusing, stressful, and involves the risk of not meeting deadlines.
Timelines for contesting a will
When it comes to filing a challenge to a will, timelines vary between states and territories. In Victoria, an eligible person has 6 months from the date of Probate (or Letters of Administration) to file a challenge.
If you miss the 6-month cut off, you can still attempt to contest the will. You would need to apply to the Court for an extension of the time limit. This request may be granted, if:
The delay is not substantial.
Your reason(s) for missing the deadline is/are valid (for example, you didn’t know the deceased had passed away or you did not know about the strict 6-month time limit), and since becoming aware, have promptly taken action to dispute the will.
The estate hasn’t already been distributed, and the other beneficiaries haven’t received the Estate assets yet.
What if there was no will?
If the deceased had no will, they are considered to have died ‘intestate’, and their estate will be distributed according to their state or territory’s intestacy laws. A fixed formula is used in these scenarios, to determine who inherits and in what ratios. You may find that distribution is not as you would have expected, and indeed, it may not be as the deceased had wished. (Therein lies one of the major problems with not preparing a valid will!)
If you believe you are entitled to more than the intestacy formula provides, and you wish to contest the intestate distribution, you would need to file a family provision claim, rather than challenge a will. In this scenario, you would dispute how the intestacy rules apply in your circumstances, and argue why you deserve a greater share in the deceased’s estate.
The two processes are almost identical. Just as you would when challenging a will, you would need to prove that you are an ‘eligible person’, and provide the same sort of evidence that you are being inadequately provided for. As there is no will to contest, issues of the willmaker’s capacity, undue influence, forgery and so on, are not relevant.
What if the deceased made the will in another jurisdiction? Do my jurisdiction’s laws apply, or theirs?
The jurisdiction is based on where probate (or letters of administration) is granted, which is usually in the state/territory where the deceased permanently resided at the time of their death. So, if the deceased lived in South Australia and you live in Victoria, the Supreme Court of South Australia would have jurisdiction over the will dispute.
Therefore, when contesting a will in another state/territory, you need to meet the eligibility requirements of South Australia, lodge your claim in the South Australian court, (not the Victorian supreme court), and comply with South Australia’s time limits and will dispute processes.
Working with a wills and estates lawyer with understanding of the legalities in different jurisdictions is wise, as adhering to time limits is key when it comes to challenging a will.
When it comes to court appearances or mediation in another state/territory, most steps can be done remotely, however in some circumstances, your lawyer may need to travel, or else you would need to hire a lawyer in that jurisdiction to represent you.
Aitken Partners: Legal support with wills and estates
If you have grounds for contesting a will, it is important not to delay. Seek legal advice sooner, rather than later, as strict time limits apply.
Aitken Partners, located in Melbourne and Brisbane, can support you through the legally- complex dispute process, from start to finish.