Contesting a Will

How do I contest a will?

There are two main ways to contest a will:

Make a family provision claim: This is when you argue that you deserve a share of the estate or that what you have received is not enough to meet your needs.
Challenge the validity of the will: This means you’re saying the will was improperly or illegally made.

Of the two options, family provision claims are more common.

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Family provision claims

You can make a family provision claim if you are an ‘eligible person’ and the deceased had a ‘moral obligation‘ to provide for you.

Eligible people include the deceased’s:

Spouse or de facto partner.
Former spouse.
Biological, adopted or step children.
Siblings.

Grandchildren.
Dependent on the deceased for financial maintenance or support.
Living in a close personal relationship with the deceased.

It’s important to know that being an ‘eligible person’ doesn’t mean you’ll automatically win if you contest the will. The court takes into account many factors, including your own financial situation, the size of the estate, if there are other people who could also contest the will, and what the person who died really wanted.

Challenging a will

You can challenge a will on several grounds. Below, we’ve outlined the most common ones, along with examples of how each ground might relate to your claim.

This may apply if the person who made the will didn’t have the mental ability to understand what they were doing. For example, if they were suffering from a mental illness or dementia when they made the will.

This means that someone manipulated the deceased into making a will that doesn’t reflect their true wishes. For instance, if a caregiver or a religious group forced the person to leave their entire estate to them through coercion or pressure.

This requires proof that the will itself is fake or has been tampered with, like someone forging the deceased person’s signature or changing the contents of the will without their knowledge.

Wills need to meet certain legal requirements to be considered valid. This means things like having enough witnesses and making sure they don’t have any conflicts of interest.

This may apply if there is evidence that the person made a new will to replace the contested one, or if there are indications that the person wanted to cancel the will but didn’t get a chance to do it properly.

If the wording or instructions in the will are unclear or confusing, you can challenge it in court. A judge can then decide what the person who passed away really meant.

How long do I have to contest a will?

In NSW, you have 12 months from the date of death to make a family provisions claim or challenge a will. However, we strongly suggest starting your claim as soon as possible. Once the assets are distributed, making a claim can be much harder and more expensive.

To find out more about the specific rules that apply in each state, head to our complete guide.

If you’re already outside the time limit, contact us immediately. Our lawyers can apply for an extension on your behalf. Over the years, we have successfully finalised many delayed claims.

What are the chances of successfully contesting a will?

Your chances of success are very high. Research done by the University of Queensland found that when wills were challenged in court, the distribution of assets changed in 74% of cases. When mediation was used, this jumped up to 87%.

But with Monaco, your chances of success are even higher — we have a 100% success rate for will disputes. In every case, we’ve secured our clients a positive outcome.

After your first consultation, we use our expertise to quickly assess your situation and let you know if your claim is likely to succeed. We’ll also outline the best strategy for winning your will dispute, as well as what results you can expect.

Will I need to go to court?

Generally, no. The vast majority of will disputes are finalised through out-of-court negotiations between the parties. Our lawyers use their experience and strong negotiation skills to maximise your inheritance without the expense of going to court. However, if you’re not getting the result you want, we will not hesitate to take your claim to court.

How much does it cost to contest a will?

No cost to you: Your claim is covered by our No Win No Fee Guarantee, meaning you pay nothing unless we win.
No upfront fees: Unlike other firms, we cover every expense related to your claim, including medical reports and expert evidence.
Capped costs: We understand how costly contesting a will can be, especially if the estate is modest. That's why we offer low, capped fees for all will disputes.
90-day risk-free trial: We offer a 90-day free trial so you can evaluate our work before committing to your claim. If you cancel anytime during this period, there's absolutely nothing to pay.

Find out more about our fees

The claims process

While each case is unique, your claim will likely go through the following steps:

Talk to one of our expert will dispute lawyers. They’ll provide free advice on your situation, including whether you can legally contest a will and how long your claim might take. At this stage, there’s no obligation to go ahead with your claim. If you choose to work with us, we’ll start work immediately.

Your lawyer will begin preparing your case. This involves:

Gathering evidence: we compile all necessary court documents and supporting evidence, including witness statements to confirm your relationship with the deceased.
Notifying the executor: we notify the executor of will that you intend to make a claim. This is a legal requirement for all will disputes.
Preparing claim documents: we take care of all essential documents for your claim. This includes filing a ‘summons’ (a legal document that starts the claim proceedings) and an affidavit (your written statement of facts).

Once your claim is filed, the estate (the other party) will have a chance to respond and file its own court documents, witness statements and other relevant material.

You and your lawyer will attend a mediation with the other party. This is a mandatory, pre-court negotiation. Your lawyer will handle all discussions during this process, ensuring you get the best result.

Most will disputes resolve at mediation — in fact, over 95% of our cases do not go to court. However, if you’re unable to reach a fair settlement through mediation, we will not hesitate to take your matter to court.

During this process, our work is still covered by our No Win No Fee guarantee. If required, we’ll also brief a barrister on your behalf. To keep costs low, we will only engage them when absolutely necessary.

With our experience and streamlined processes, you’ll receive your rightful inheritance in the shortest time possible.

Meet the team

Our team use their extensive experience to increase your chances of success. We’ve won many awards for our work, including ‘Compensation Law Firm of the Year 2020 GBM Global Awards.’

Leon Monaco

Managing Partner

English, Russian
Workers Compensation, TPD, Motor Vehicle Accidents, Public Liability

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Nancy Kuan

Special Counsel

English
Family Provision Claims, Motor Vehicle Accidents, Public Liability

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Kathryn Morcos

Solicitor

English
Family Provision Claims, Public Liability, Motor Vehicle Accidents

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Meet more of the team

Frequently asked questions

All Open

The easiest way to get a copy of the will is to ask the person in charge of handling the deceased person’s affairs, known as the executor. If you don’t know who the executor is, you can try looking online.

Each state also has their own website where you can search for probate notices:

A ‘probate notice’ serves as a public notification to alert interested parties to come forward and make a claim against the estate if they believe they have a right to inherit or if they are owed money by the deceased.

Here are some additional methods to find a will:

Request a copy of the will from the probate court
Check with deceased’s lawyer or accountant
Contact their bank to see if the will was held in a safety deposit box
Search the deceased’s home.
Contact family members or close friends who might know of the will’s whereabouts.

If you’re still struggling to find the will, it might be helpful to speak with one of our will dispute lawyers. They might be able to help you get a copy of the will.

Around half of Australians pass away without creating a will, which means they die intestate. When someone dies intestate, the distribution of their belongings and property is determined by the laws of the state or territory where they lived.

In the absence of a will, the estate is divided among the immediate family members of the deceased. However, before this can happen, someone must apply to the court for permission to administer the estate.

The distribution of assets follows a specific order known as the order of succession, with priority usually given to the surviving spouse, children, and other close relatives. If you believe that the way the estate is being divided is unfair and you want to contest it, you can still make a family provision claim.

Yes, we can help you defend a will that someone else is contesting.

Our experience in both defending and contesting wills means we understand the process from all angles. As a result, we’re able to thoroughly prepare your case and identify the best strategy for securing your inheritance.

This dual experience even helps us predict the other side’s legal strategy and arguments. This ensures you have the strongest possible case.

If you’re looking to defend a contested will, contact us today. Our specialist lawyers are always available to provide free advice on your situation.

Most will disputes are resolved in 6 to 12 months. The exact length depends on the complexity of your case, whether anyone else is contesting the will, and — crucially — how well your claim is prepared.

For a more precise estimate on how long your claim may take, speak to our specialist lawyers today.

The law related to wills is complicated, so working with a specialist lawyer can greatly increase your chances of success.

When you’re with Monaco, we will always:

Advise you on how to proceed if your loved one dies without leaving a will.
Establish whether you fit into a definition of an ‘eligible person’ as defined by the law. This is informed by precedents and the legislation.
Compare your position to other eligible people who make a similar claim on the estate.
Establish the exact size of the estate from the executor and other sources.
Collect strong, detailed and thorough evidence supporting your case. We also cover all upfront costs for this evidence, so you’re never out-of-pocket.
Prepare the court documents in support of your claim.
Negotiate with the estate (and other claimants) to reach settlement before court. This reduces the cost and stress of going to court.

Plus, with our No Win No Fee guarantee, you’ll pay nothing unless we win your claim.

Engaging a lawyer saves you time and effort, and can also help alleviate the emotional burden of making an inheritance claim.

The following possibilities cover most scenarios:

Success: If you contest a will and win, the court may change how the assets are divided. This means you could inherit more than you would have originally. In some cases, the judge may even make the other side pay for your legal fees.
Partial success: You might not get everything you wanted, but contesting the will could still lead to a better distribution of assets for you.
Mediation or negotiation: Instead of going to court, you and the other people involved in the dispute can try to work things out through discussions and compromises. If everyone agrees, this can lead to a solution that satisfies everyone, without the need for a long and expensive legal battle.
Unsuccessful challenge: It’s also possible that your challenge to the will won’t be successful. In that case, the court will say the will is valid, and the assets will be divided according to what was originally stated in the will.

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Will Disputes

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Contesting a Will

How do I contest a will?

Start your free online claim check

Family provision claims

Challenging a will

Lack of mental capacity

Undue influence

Fraud or forgery

Errors in the will

Changes or cancellation

Confusion or uncertainty

How long do I have to contest a will?

What are the chances of successfully contesting a will?

Will I need to go to court?

How much does it cost to contest a will?

The claims process

Find out if you have a claim

Prepare your claim

Begin court processes

Attend mediation

Go to court (if necessary)

Your claim is successfully finalised

Meet the team

Frequently asked questions

How do I get a copy of the will?

What happens if there is no will?

Can you help defend a contested will?

How long does the process of contesting a will typically take?

Do I need a lawyer to contest a will?

What are the potential outcomes if I contest a will?

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There is no way I would've won without Monaco. My family and I are so grateful.

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I knew it from the very first phone call: I had found a compassionate law firm.

Good result! We had a complicated claim but they got the job done.

Thank you for accomplishing so much in such a short time.

Monaco helped me get much more compensation than I expected.

They helped me juggle my injury claim and my mum's full-time care.

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Monaco's help reduced a 12-month process to just a few months.

Today, after only 8 weeks, I got the best news: my claim was successful!

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