Contesting a will

Updated 20 August 2026 · 9 minute read

"Contesting a will" almost always means a family provision claim - asking the court for a larger share because the will (or intestacy) didn't make adequate provision for you. It is not about whether the will is valid; it's about whether it's fair to people the deceased had a responsibility toward. Two things decide most cases before any argument starts: whether you're eligible, and whether you're inside the time limit.

If you are the executor and a brother or sister has just said they will contest, skip to what to do when a sibling threatens to contest. Short version: a family provision claim does not stop your probate application, but it does stop you distributing until the window closes.

The time limits - strict and short

Who can claim

Every state starts with the same core: spouse or de facto partner, children (including adopted), and in most states former spouses receiving maintenance and people who were financially dependent - stepchildren, grandchildren and household members qualify in some states with conditions. Victoria's list is the broadest; South Australia's was deliberately narrowed by the Succession Act 2023. Eligibility is state-specific - check yours before forming views.

What the court weighs

• The claimant's financial position and needs - the engine of most successful claims
• The size of the estate and competing claims on it
• The relationship's nature and any contributions to the deceased's assets or care
• Conduct - estrangement matters but rarely disqualifies on its own
• Any provision made during life, and the deceased's reasons (courts read those letters)

What it costs - and how they end

The folklore that "the estate pays everyone's costs" is out of date. Courts increasingly order unsuccessful claimants to carry their own costs, and most firms take strong claims on deferred or no-win-no-fee terms. The overwhelming majority of claims settle at mediation without a hearing - commonly inside 6-12 months.

If you're the executor and a sibling threatens to contest

The most common version: you are applying for probate, or have just received it, and a brother or sister announces they will contest. Here is how to work through it.

Does the probate application stop?

Usually no. Work out which of two very different things your sibling actually means:

• "I didn't get a fair share" is a family provision claim. It accepts the will as valid and asks the court for more. It does not stop the grant. In most states the clock only starts running from the grant, so getting probate actually brings the deadline closer.
• "That will isn't real" or "Mum wasn't capable" or "he pressured her" is a validity challenge. This can come with a probate caveat lodged with the court, which blocks the grant until the caveat is dealt with. If a caveat is lodged you will be told by the registry; until then, keep going.

A letter that just says "I will be contesting" is almost always the first kind. Ask, in writing, what the claim is based on. You cannot stop someone contesting, but you can make sure you respond to the right thing.

Is a brother or sister even eligible?

Often not. Spouses and children are eligible everywhere, but a sibling of the deceased is not on the core list in any state. In most states a brother or sister can only claim if they were financially dependent on the deceased, or lived in the deceased's household and were dependent, and in some states they cannot claim at all. Note the difference: a sibling of the deceased is weak ground; a sibling of yours who is the deceased's child ("Mum left everything to my brother") is a child of the deceased and eligible in every state. Check the eligibility rules for your state before you worry about the merits.

What you can still do while the window is open

• Pay the funeral account and the estate's genuine debts, including tax
• Collect and secure assets, keep insurance current, and open an estate bank account
• Sell assets if needed to pay debts or stop a property deteriorating, keeping the proceeds in the estate
• Notify beneficiaries that distribution is on hold and why

What you must not do is distribute to beneficiaries, including yourself, until the time limit in the table above has passed. An executor who pays out inside the claim window can be personally liable to a successful claimant for what was distributed. Some states allow an earlier distribution if formal notices are published and no claim arrives, but get advice before relying on that.

How to handle the threat

• Keep every letter, text and email, and write a dated note of any conversation
• Do not take sides. Your job is to hold the estate for whoever turns out to be entitled, even if a beneficiary is pressing you to pay now
• Do not argue the merits with your sibling or negotiate alone. Reply briefly that you have noted their position and the estate will not be distributed until the claim period ends
• If a formal claim is filed, most are resolved at mediation rather than a hearing, and settlement is usually paid from the estate rather than by you personally

Get a probate lawyer involved as soon as a sibling gives written notice of a claim, lodges a caveat, or the estate is large enough that a six to twelve month hold creates real problems. Executor duties covers the full sequence.