Contest a Will

Contesting a Will – provision claims

Contesting a Will refers to making a provision claim against a Will. For information on other types of challenges and disputes, please see challenge a Will.

How to Contest a Will

To contest a Will, you must be an eligible person – that is:

• the deceased’s spouse
• the deceased’s child and/or
• the deceased’s dependent.

It is essential that you obtain legal advice as soon as you learn that you have been treated unfairly in a Will. You may need to lodge a caveat against an estate to ensure that probate is not granted. Once probate is granted, it is nearly impossible to contest a Will.

The person contesting the Will needs to clearly set out the grounds and basis upon which they are contesting the Will. There is no guarantee that the contest will be successful.

In the first instance, you should try to resolve your claim or dispute informally through negotiation with the executor and the other beneficiaries. If a resolution can be achieved informally, the executor and the other beneficiaries will execute a Deed of Agreement that sets out the provision that has been agreed to.

If you cannot reach an agreement, then you will need to file an Application and Affidavit in the Supreme Court, or a Claim and Statement of Claim.

The court will make directions regarding the conduct of the challenge, which will often include orders requiring the parties to participate in mediation under the supervision of a barrister. If a settlement cannot be negotiated at mediation, then the matter will go to trial and the judge will make the final decision.

Strict time limits apply to contesting a Will. The provision application needs to be filed with the Supreme Court within nine months of the date of death.

Speak with one of our wills and estates lawyers in Cairns as early as possible so that we can help you successfully contest a Will.