Contesting a will (or challenging the administration of an estate if there was no will) can be a delicate and complex matter to resolve. The courts are quite wary and careful about interfering with the wishes of a deceased person. However, there are situations when contesting a last will is absolutely necessary, especially when a beneficiary feels they’ve been treated unfairly. This is commonly called a Family Provision Application (FPA).
Whenever someone wants to contest a will, it will take a lot of time, effort, and consideration for all parties involved to resolve the dispute. This can be particularly challenging when considering the grief that each party experiences when losing a loved one.
It is important to know your rights and act swiftly if you suspect you may be entitled to more than what was provided for you in the will.
What does “challenge” or “contest” mean?
Contesting the administration of an estate and challenging the validity of a will are actually two very different things.
When a person challenges or disputes a will, they are questioning the validity of the will itself. This type of case usually happens when the person who wrote the will was suffering from a condition that may have affected their ability to think clearly upon writing the will.
Challenging the validity of a will usually begins by lodging a caveat in the Supreme Court of Queensland. However, you must be sure that you have ‘standing’ to lodge the caveat application. The caveat is lodged to stop the granting of probate (a grant of probate is proof that the will is valid).
To successfully challenge the validity of a will, you need to convince the court that the deceased had, for example, a lack of capacity, lack of knowledge, fraud or undue influence, or other relevant reasons.
Challenging the distribution of an estate, on the other hand, is when an eligible person or beneficiary has been left out of the will or been unfairly or inadequately provided for in the will. This also requires the court’s intervention.
Challenging an estate can only be done by an eligible person
To challenge the distribution of an estate, a person must be eligible to do so based on the requirements of the law. A person is considered eligible with respect to the deceased’s estate if they fall within the following criteria:
- The deceased’s spouse (whether current or former)
- A de facto partner (sometimes there may be more than one)
- The child of the deceased (including estranged children; step-children; and adopted children)
- A dependent (for example: a parent of the deceased; or the other parent of a surviving child under the age of 18 years of that deceased person; or a person under the age of 18 years).
The Succession Act provides descriptions for each of the criteria mentioned above to avoid any confusion. However, a ‘dependant’ could theoretically be anyone if it is justifiably argued. It’s best to seek the help of an experienced estate litigation solicitor to assist you in determining whether you are an eligible person or not.
Source: section 41 of the Succession Act 1981 (Qld).
There are time limits that apply to contesting a will
If you plan on challenging an estate, you must first give written notice to the executor of your intention to apply for further and better provision. The written notice must be provided strictly within six months of the date of death. If the executor of the will received no notice after the prescribed time, they could distribute or transfer assets of the estate among the beneficiaries without any recourse.
However, there is a second time limit that also applies to Family Provision Applications, which require a claimant to file their court application within nine months of the date of death. In some instances, a court can allow applications past the limitation date however this is not easy and often requires engaging a solicitor and barrister to assist you.
| When | What has to happen |
|---|---|
| Within 6 months of the date of death | Give the executor written notice that you intend to apply for further provision. This is what stops the executor safely distributing the estate without you. |
| Within 9 months of the date of death | File the Family Provision Application itself in the Supreme or District Court of Queensland. |
| After 9 months | The court can still allow an application, but an extension is never automatic and gets harder the longer the delay. |
| Once the estate is distributed | An executor who has had no notice may distribute after 6 months without recourse. Recovering anything after that is substantially harder. |
Free Eligibility Check
Tell us your relationship to the deceased and we will let you know whether you are an eligible person, and what the time limits mean in your situation. It is free and there is no obligation.
Contesting requires the claimant to demonstrate they were inadequately provided for.
If you challenge an estate on the basis that you did not receive enough of an inheritance, you need to demonstrate the merit of your claim by producing substantial evidence. Your evidence will mostly be based on your own personal circumstances, such as your:
- income
- living circumstances (e.g. renting / owning a home)
- assets
- liabilities
- expenditures
- medical needs
- educational and lifestyle needs
- previous reliance on the deceased
This evidence is always in the form of statements known as affidavits. The executor or administrator of the will is entitled to reply with their own affidavit in an attempt to counter your allegations.
How much can you receive if you contest a will?
There is no fixed formula and no set percentage. The court starts with what you need for your proper maintenance and support, then weighs that against the size of the estate and the competing claims on it. Two recent Queensland decisions show how differently that can land.
In Morris v Morris [2025] QSC 7 the estate was worth around $1.18 million and consisted mostly of the family home. The will divided everything equally between the deceased’s widow of nearly 40 years and his adult daughter from an earlier marriage. On paper the widow received about $600,000, but she was 70, had roughly $22,000 in savings and $184,000 in superannuation, and no guaranteed right to stay in the house she had lived in for more than two decades. The Supreme Court found that an equal split was not adequate provision. She ended up with an 85 per cent interest in the home, a 10 year right to reside there, the household contents, and a $24,000 costs contribution from the estate.
In Madjeric v Madjeric [2025] QDC 126 an adult son was deliberately left out of his mother’s will. She had signed a statutory declaration saying he had already received more than his share, and the facts bore part of that out, because he had been given approximately $405,000 during her lifetime. He was still awarded $250,000 from an estate of about $870,000. The District Court was not satisfied that her stated reasons held up to scrutiny, and it found he had genuine ongoing need.
The pattern is that the court measures need at the time of the hearing rather than generosity in the past. A large lifetime gift weakens a claim without necessarily defeating it, and an even split can still be inadequate where one beneficiary has nowhere else to live. We go through these and other recent judgments in Lessons from the Courts: QLD Estate Disputes in 2025.
The steps in contesting a will in Queensland
Before your case will be reviewed and considered by a judge, an informal meeting between the parties is usually held. The purpose of this is to narrow the issues and attempt to negotiate a settlement without incurring further legal costs.
If a settlement agreement is not reached at the informal meeting, the Family Provision Application will proceed to a mediation where a neutral third party (a mediator) will consider both sides and attempt to propose solutions that each party can live with.
If the mediation fails, the matter will proceed to trial.
How long does it take to contest a will?
The statutory clock is the only fixed part. You have six months from the date of death to give the executor written notice, and nine months to file the application. Everything after that depends on the estate and on the other side.
Most Family Provision Applications never reach a trial. The usual sequence is an informal settlement conference, then a mediation, and only then a hearing if the mediation fails. A claim that settles at mediation finishes considerably sooner than one that runs to judgment, and how well the affidavit material is prepared beforehand has a great deal to do with which of those two paths it takes.
What tends to slow a claim down is the estate rather than the court. Assets that are hard to value, superannuation and life insurance that sit outside the estate, an executor who is slow to disclose, or a second claimant with a competing application will each add time. If the estate has already been distributed, recovering anything becomes substantially harder, which is the practical reason the six month notice deadline matters as much as it does.
How much does it cost to contest a will in Queensland?
For most people the real question is not what the total legal bill comes to, but whether they will have to pay it themselves. In a Family Provision Application the costs of a successful applicant are usually paid out of the deceased estate, so the money comes from what is being divided rather than out of your own pocket. That is the usual position and not a guarantee.
If the executors do not agree to pay your legal fees from the estate, you may need to apply to the Court for an order. If your application never had merit, or it does not succeed, you may be left paying your own costs and in some circumstances the estate’s as well. Queensland courts will also make costs orders against people personally where they have behaved unreasonably. In Harrison v Cox (No 2) [2025] QSC 205 two executors transferred the estate’s main asset to themselves while a claim was pending and then refused a reasonable offer to resolve it. They lost their right to be indemnified by the estate for their own costs and were ordered to reimburse the estate for the applicant’s.
Most estate litigation in Queensland is billed at an hourly rate, which is why many people never find out whether they had a claim worth making. Roche Legal acts on a no win no fee basis in qualifying will disputes. If you already have a copy of the will and can show what the estate is worth, either through the executor or from title records for property the deceased owned outright, we can usually offer that from the start.
Most people cannot get that far on their own, which is normal. In that case we begin with a preliminary investigation from $440 including GST, which is roughly an hour of a solicitor’s time. We request the documents, work out what the estate actually holds, and lodge your notice of intention with the executor before the six month deadline passes, so your position is protected while we are still finding out. Once we know the size of the estate we can tell you whether we will run the claim no win no fee from there. Costs in a family provision application are usually recovered from the estate.
Whatever the matter takes, we also cap what we can charge. Our fees will never exceed 40% of your gross inheritance, so what you keep is always more than what we are paid. The cap is there to stop legal costs eroding an estate, and to make sure the person who brought the claim actually receives something.
To protect yourself from the costs risk, talk to us at Roche Legal for free initial advice and no win no fee representation for your Family Provision Application.
Frequently Asked Questions about Contesting a Will in Queensland
There is no standard figure, because the cost turns on whether the matter resolves at an early settlement conference, settles at mediation, or runs to trial. What matters more for most claimants is who ultimately pays. In a Family Provision Application the costs of a successful applicant are usually met from the deceased estate rather than by the applicant personally, though that is the usual outcome rather than an entitlement, and an unsuccessful or meritless application can leave you paying your own costs and sometimes the estate’s as well.
Roche Legal acts on a no win no fee basis in qualifying Queensland will disputes. If you already have a copy of the will and can show what the estate is worth, we can usually offer that from the start. Most people cannot, so we begin with a preliminary investigation from $440 including GST, roughly an hour of a solicitor’s time, during which we request the documents, work out what the estate actually holds, and lodge your notice of intention with the executor before the six month deadline passes. Once we know the size of the estate we can tell you whether we will run the claim no win no fee from there, and costs are usually recovered from the estate. We also cap our fees at 40% of your gross inheritance however long the matter takes, so what you keep is always more than what we are paid, and an estate cannot be eroded by legal costs.
There are two distinct grounds, and they are often confused.
The first is challenging the validity of the will itself, arguing the will should never have been admitted to probate because the testator lacked mental capacity, did not know and approve its contents, was unduly influenced, or because the document is forged or improperly executed. This is brought as a probate dispute, usually starting with a caveat lodged in the Supreme Court of Queensland to stop probate being granted while the matter is investigated.
The second is challenging the distribution of an estate under family provision legislation, accepting that the will is valid, but arguing that the will-maker failed to make adequate provision for an eligible person’s proper maintenance and support. This is brought as a Family Provision Application under Part IV of the Succession Act 1981 (Qld), and is by far the more common type of estate challenge in Queensland. A third, less common ground is challenging the conduct of an executor or administrator, for example where assets have been distributed prematurely, dealt with in a self-interested way, or where the executor refuses to administer the estate properly.
There is no published official success rate, but Queensland court decisions consistently show that eligible applicants who can demonstrate genuine financial need tend to succeed in obtaining further provision, even where the will-maker had stated reasons for the disinheritance.
Recent 2025 Queensland decisions illustrate the pattern: in Morris v Morris [2025] QSC 7, a 70-year-old widow received an 85% interest in the family home plus a 10-year right of residence, after the Supreme Court found that an equal split between her and her step-daughter was inadequate given her age, limited assets, and health. In Madjeric v Madjeric [2025] QDC 126, an adult son who had been deliberately left out of his mother’s will, and who had received approximately $405,000 in lifetime gifts, was nonetheless awarded $250,000 from an estate of around $870,000, because the District Court found the testator’s stated reasons for the disinheritance did not hold up to scrutiny and the son had genuine ongoing need. The pattern across these decisions is consistent: courts focus on the applicant’s actual need at the time of hearing, the size of the estate, and the genuineness of the testator’s reasoning, not on a strict reading of the will. We discuss these and other recent decisions in detail in Lessons from the Courts: QLD Estate Disputes in 2025. That said, success is heavily fact-specific, and a strong case on paper can fail on evidence, which is why early specialist advice is essential.
Several things can bar or weaken a Family Provision Application:
Lack of standing, only spouses (including de facto and former spouses), children (including stepchildren and adopted children), and dependants can apply under s 41 of the Succession Act; friends, siblings, and extended family without a dependency relationship cannot apply.
Missed time limits, notice must be given to the executor within 6 months of the date of death, and the application filed within 9 months. The Court can extend time in some cases, but extensions are not automatic and become harder the longer the delay.
A prior release or deed of family arrangement, if you have signed a binding deed or release in respect of the estate (sometimes done as part of a lifetime arrangement or earlier dispute), that document may prevent a later claim.
Distribution of the estate, if the estate has already been fully distributed before a claim is filed, recovery becomes more complicated, though not impossible, particularly where the executor distributed in the face of a known potential claim.
Adequate existing provision, if the will already provides sufficiently for your proper maintenance and support given your circumstances, the Court will not order further provision simply because you feel the distribution was unfair.
You are not legally required to use a lawyer, but contested estate matters in Queensland involve strict statutory deadlines, formal court applications, affidavit evidence, and procedural rules that are difficult to navigate without legal training. Self-represented applicants frequently miss the 6-month notice window, fail to plead the s 41 factors properly, or undermine their own evidence in affidavits. Beyond the procedural risk, there is a strategic dimension: most Family Provision Applications resolve at mediation rather than trial, and the quality of the negotiation often turns on how strongly the case is documented in affidavit material before mediation. An experienced estate litigation lawyer manages that documentation, anticipates the executor’s likely position, and structures the claim to maximise the prospects of an early settlement on reasonable terms. If cost is a concern, Roche Legal offers no win no fee representation for qualifying Family Provision Applications, which removes the up-front financial risk for eligible claimants.
Getting help to contest a will
Contesting a will or challenging an estate is never an easy process. The court recognises the sensitivity of the matter and will take time to consider all the arguments and evidence presented in the legal proceedings, if it gets that far.
If you are placed in a situation where you need help challenging the validity of a will, contesting an estate, talk to us at Roche Legal for free initial advice or visit us in our offices in Logan, Brisbane, or the Sunshine Coast.
Roche Legal is a group of experienced Queensland lawyers you can trust to help you with your claim. In addition to estate litigation, we also practice in personal injury law anywhere in Queensland.