FAQs about contesting a Will

Who can contest a Will?

To contest a Will – that is, make a provision claim against a Will – you must be an eligible person:

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

Is there a time limit for contesting a Will?

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

Can I contest a Will after probate?

Once Probate of a Will is granted it is extremely difficult (impossible in many cases) for you to contest a Will.

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.

How much does it cost to contest a Will?

The cost of contesting 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 Estates Lawyers, we can accept some instructions on a no-win-no-fee, or deferred fee basis. Contact us to learn more.

Can an executor contest a Will?

Executors can contest a Will if they feel they have been unfairly treated in the Will.

You will need to carefully consider whether it is appropriate for you to continue to act as executor if you are contesting the Will. In some cases, you will need to step aside as executor before you can start the process of contesting a Will.

Can grandchildren contest a Will?

Grandchildren have rights to contest a Will of their grandparents if they feel that they have been unfairly treated by the Will, particularly in circumstances where they were in any way receiving financial support or assistance from their grandparents.

Can stepchildren contest a Will?

Stepchildren have a right to contest the Will of not only their parents but also their stepparents.

In many cases, a stepchild’s right to challenge the Will of a step-parent is no different to the right of a biological child to challenge their parents’ Will.