FAQs about challenging a Will

Who can challenge a Will?

Anyone who is, or should have been, a beneficiary of the Will can challenge it. Most commonly, eligible applicants are:

• the spouse or de facto partner
• children
• step-children
• other relatives
• financial dependents
• any beneficiary or eligible beneficiary who has been left out of a Will, or who has not been properly provided for in the Will.

Is there a time limit for challenging a Will?

There are strict time limits that apply to contesting a Will.

In some cases, you can be barred from challenging a Will if you do not initiate your challenge before the executor obtains probate, or within 9 months from the date of death (whichever comes sooner).

How much will I receive by challenging a Will?

If your challenge is successful, the amount you are entitled to will be determined by:

• your financial circumstances
• the size of the estate
• the financial circumstances of the other beneficiaries of the estate.

How much does it cost to challenge a Will?

The cost of challenging a Will varies case by case, depending on the circumstances, such as:

• whether you can negotiate an outcome without involving the court
• whether it is necessary to go to court
• the types of investigation needed to get evidence to support your claim
• the attitude of the executors and the other beneficiaries of the estate.

If your challenge is successful, you will usually obtain an order that requires the estate to pay some or all of your legal costs.

At Cairns Wills and Estate Lawyers, we accept instructions on a no win no fee, or deferred fee basis. Contact us to learn more.

Can I challenge a Will executor?

Any beneficiary under a Will has the right to challenge the decision-making and conduct of an executor if they believe the executor is:

• acting outside the terms of the Will
• acting too slowly
• acting in such a way that incurs unnecessary fees and costs and/or a loss of estate property or value.

A challenge to an executor’s conduct can often lead to the removal and replacement of the executor by a beneficiary or third party. Compensation may be paid by the executor to the beneficiary. If successful in the challenge, a beneficiary is usually also entitled to recover their legal costs (associated with the challenge) from the estate.