Challenging a Will in Queensland: Grounds for Contesting and the Legal Process

The passing of a loved one is undoubtedly a difficult and emotionally trying time. However, when the distribution of the deceased’s assets through their will becomes contentious, it can further exacerbate the already distressing situation. In Queensland, Australia, individuals who believe they have been unfairly treated in a will or were inadequately provided for by the deceased have the option to contest the will. This article delves into the grounds for contesting a will in Queensland, the legal process involved, the benefits and issues of contesting, and the relevant provisions under the Succession Act 1981 (Qld).

Grounds for Challenging a Will

Challenging a will involves disputing its validity. Alternatively, contesting a will involves questioning the adequacy of the provision made for certain beneficiaries. The following are some common grounds on which an individual may challenge or contest a will in Queensland:

  1. Lack of Testamentary Capacity

One of the fundamental requirements for a will to be considered valid is establishing the testamentary capacity of the deceased. Testamentary capacity refers to the mental ability of the testator (will-maker) to understand the nature and effect of making a will. If it can be proven that the testator did not have the mental capacity to understand the consequences of their actions at the time of creating the will, it can be challenged. Factors such as dementia, mental illness, or undue influence during the creation of the will can be taken into consideration when assessing testamentary capacity.

  1. Undue Influence

Undue influence occurs when a person exerts pressure or coercion on the testator, leading them to make decisions in the will that do not reflect their true wishes. Challenging a will on the basis of undue influence requires providing evidence that such coercion existed and influenced the terms of the will and its distribution of assets. For instance, if a caregiver or someone with a close relationship to the testator unduly influenced them into changing their will to benefit them unfairly, it can be grounds for the will’s validity.

  1. Lack of Proper Execution

For a will to be valid, it must be executed properly, following specific legal requirements. If it is discovered that the will was not signed, witnessed, or dated correctly, it can be challenged on the grounds of improper execution. The testator must sign the will in the presence of two or more witnesses who must also sign it in the presence of the testator. Failure to adhere to these formalities may render the will invalid.

  1. Fraud or Forgery

A will can also be challenged if there is evidence of fraud or forgery involved in its creation. This may include situations where the testator’s signature was forged, or false representations were made to manipulate the will’s contents. Detecting fraud or forgery may require expert examination of handwriting and other evidence to support the claim.

  1. Family Provision Claims

Under the Succession Act 1981 (Qld), certain eligible individuals can contest the terms of the will by making family provision claims if they believe that they were unfairly left out or inadequately provided for in the will. These claims seek a more equitable distribution of the estate in favour of the family provision applicant. The Act provides for spouses, children (including stepchildren), and dependents to make such claims. The court will consider the financial and personal circumstances of the claimant and the relationship they had with the deceased when deciding whether to grant a family provision order.

The Legal Process

Challenging or contesting a will in Queensland involves specific legal steps and procedures. It is essential to seek legal advice and representation to navigate through the complexities of the process. The general outline of the legal process includes:

  1. Obtaining Legal Advice

The first step in challenging or contesting a will is to consult an experienced solicitor who specialises in estate litigation. They will assess the validity of the potential claim, review the available evidence, and advise on the most appropriate course of action. A solicitor can help determine whether the claim has merit and the likelihood of success in court, as well as advising on the different outcomes of either challenging or contesting a will.

  1. Initiating a Claim

If the solicitor determines that there are valid grounds for challenging or contesting the will, they will initiate a claim on behalf of the concerned party. This may involve filing a court application or a family provision claim, depending on the specific circumstances. The solicitor will draft the necessary legal documents to commence court proceedings.

  1. Mediation

In some cases, the court may require mediation to be attempted before proceeding to trial. Mediation is a process where parties involved in the dispute try to reach a settlement with the help of a neutral mediator. Mediation can be a less adversarial and less expensive alternative to resolving the dispute, allowing the parties to explore potential compromises.

  1. Court Proceedings

If mediation fails or is not a mandatory requirement, then the matter will proceed to court. Both parties will present their evidence and arguments before a judge, who will ultimately decide the validity of the will or the appropriate redistribution of assets in a successful family provision claim. During the trial, witnesses may be called to testify, and experts, such as handwriting analysts or medical professionals, may be consulted to support the claims made.

  1. Judgment and Appeals

Once the court reaches a decision, a judgment will be handed down. If any party is dissatisfied with the judgment, they may have the right to appeal the decision within a specific timeframe. An appeal involves a higher court reviewing the legal errors or potential miscarriage of justice that may have occurred during the initial trial.

Benefits of Challenging or Contesting a Will

Contesting or challenging a will can be a daunting process, but it can also bring several benefits, such as:

  • Fair Distribution

    Contesting a will provides an opportunity to ensure that the deceased’s assets are distributed more appropriately in favour of the family provision applicant. It can prevent situations where an eligible person receives little or no provision while others receive a disproportionate share.

  • Protection of Rights

    Challenging a will allows individuals to protect their legal rights and interests when they believe the will is invalid. It ensures that the testator’s true intentions are upheld and respected.  Contesting a will allows individuals to protect their legal rights and interests when they believe they have not been adequately provided for by the deceased’s will.

  • Closure and Peace of Mind

    Successfully contesting a will can bring closure and peace of mind to those who have been struggling with the emotional and financial impact of unfair distribution. Successfully challenging a will restores the previous will (if any) of the testator, restoring their last legal and valid testamentary intentions. Legal actions can also provide a sense of justice and validation for claimants.

Foreseeable and Unforeseeable Issues

While challenging or contesting a will can offer benefits, it is crucial to consider potential issues that may arise during the process. Some foreseeable issues include:

  • Emotional Stress

    The legal process can be emotionally draining for all parties involved, as it may involve reliving the loss of a loved one and facing contentious disputes. The emotions involved can hinder effective communication and decision-making.

  • Costs and Time

    Contesting a will can be a lengthy and expensive process, especially if the matter goes to trial. Legal fees, court costs, and other expenses can add up quickly, placing a financial burden on the claimants.

  • Strained Relationships

    Will contests have the potential to strain relationships among family members and beneficiaries. The dispute may lead to bitterness and animosity, further complicating an already delicate situation.

Unforeseeable issues may include unexpected challenges to the evidence presented or the discovery of new information that could impact the case. The complexity of the legal process may also lead to unpredictable outcomes.

Legalities under the Succession Act 1981 (Qld)

The Succession Act 1981 (Qld) governs the laws related to wills and estates in Queensland. It outlines the legal requirements for a valid will and how a will might be challenged, as well as the ground for family provision claims, and the process for contesting a will in court.

Under Section 10 of the Act, for a will to be valid, it must be in writing, signed by the testator or another person in the testator’s presence and at their direction, and witnessed by at least two other people present at the same time. These witnesses must also sign the will in the presence of the testator.

Under Section 41 of the Act, the court has the discretionary power to make a family provision order to ensure adequate provision is made for eligible claimants. The court considers various factors, including the claimant’s financial and personal circumstances, the size of the estate, and the relationship with the deceased.


Both challenging a will and contesting a will in Queensland are complex legal processes that require a solid understanding of the grounds for contesting and the relevant provisions under the Succession Act 1981 (Qld). Seeking legal advice and representation from an experienced solicitor is crucial for navigating through the challenges and potential complexities of the process. While it may be emotionally and financially demanding, contesting a will can lead to a more appropriate distribution of assets in favour of the applicant, and provide closure for those who believe they have been unfairly treated in the deceased’s will.

However, it is essential for all parties involved to approach the process with sensitivity and understanding, keeping in mind the emotional toll it may take on the family dynamics. Ultimately, with proper legal guidance and a thorough examination of the evidence, the legal system can help ensure that the testator’s last valid will is respected and carried out justly, or otherwise ensuring that the estate makes appropriate provisions for those who have a moral claim upon the testator’s estate.

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Last updated: 27 July 2023