Contesting a will means challenging whether the will is legally valid. It’s different from a family provision claim, which accepts the will and asks the court to redistribute the estate. In Queensland there are four main grounds for contesting a will’s validity: lack of testamentary capacity, undue influence, fraud or forgery, and improper execution. This article covers each ground, what you need to prove and the practical realities of running these claims.
What Does It Mean to Contest a Will?
Contesting a will is a legal action asking the Supreme Court of Queensland to set aside a will on the basis that it’s not legally valid. If the challenge succeeds, the will is invalidated and either an earlier valid will applies or the estate is distributed under Queensland’s intestacy rules.
This is different from a family provision claim, which doesn’t argue the will is invalid. It argues that even though the will is valid, it didn’t adequately provide for an eligible person.
Lack of Testamentary Capacity
Testamentary capacity is the legal ability to make a valid will. For a will to be valid, the will-maker must have understood, at the time of signing:
- That they were making a will and what a will does
- The nature and extent of the property they were giving away
- Who might reasonably expect to benefit from the estate
- The effect of their decisions on those people
Claims based on lack of capacity are common where the will-maker was elderly, unwell or suffering from cognitive decline such as dementia or Alzheimer’s when the will was made. Proving lack of capacity requires medical records from around the time the will was signed, evidence from the solicitor who prepared the will, statements from family, friends and carers, and often an expert opinion from a geriatrician, psychiatrist or neurologist.
The presumption starts in favour of the will’s validity. The person contesting has to raise sufficient evidence to displace that presumption.
Undue Influence
Undue influence means the will-maker was pressured, coerced or manipulated into making a will that didn’t reflect their true wishes. Simple persuasion or family pressure isn’t enough. The influence has to be strong enough to override the will-maker’s free choice.
These claims often arise where:
- A carer, new partner or one family member had isolated access to the will-maker
- The will-maker was frail, dependent or vulnerable
- The will departed significantly from earlier wills or from what the will-maker had told family they intended
- The person who benefited was closely involved in arranging the new will
Undue influence is one of the hardest grounds to prove. The influence usually happens behind closed doors and the will-maker isn’t around to give evidence. Success typically depends on building a circumstantial case from documents, timing, medical records and witness evidence.
Fraud or Forgery
Fraud covers situations where the will-maker was deceived into signing the will, or where their signature was obtained by deception. Forgery covers situations where the signature or the document itself has been falsified.
These claims are rare compared to capacity and undue influence claims but they do happen. Evidence usually includes forensic handwriting analysis, evidence from witnesses to the will, records of the will-maker’s whereabouts on the date of signing, and any documents that contradict the version being propounded.
Where fraud or forgery is proven the will is set aside entirely.
Improper Execution
Queensland’s Succession Act 1981 sets strict formal requirements for a valid will:
- It must be in writing
- Signed by the will-maker or by someone in the will-maker’s presence and at their direction
- Signed or acknowledged in the presence of two or more witnesses who are present at the same time
- Signed by each witness in the presence of the will-maker
If these formalities aren’t met, the will can be challenged as improperly executed. The court has power to dispense with the formal requirements in some cases under section 18 of the Act, particularly for informal wills, but this isn’t guaranteed.
Who Can Contest a Will in QLD?
Anyone with a legitimate interest in the estate can contest a will’s validity. This usually includes:
- Beneficiaries under an earlier will
- People who would inherit under the intestacy rules if the will were invalidated
- Family members whose position would change if the current will didn’t apply
Standing is broader than for family provision claims because the question is whether the will is valid at all, not whether a specific applicant received adequate provision.
Time Limits for Contesting a Will
Time limits for challenging a will’s validity are different from family provision claims and generally more flexible. However, once probate has been granted and the estate distributed, practical difficulties in unwinding the distribution can make late challenges harder to run. Acting before probate is granted is easier and cheaper than acting afterwards.
Getting legal advice as soon as you have concerns about a will’s validity matters.
What Happens If a Will Is Set Aside?
If a will is successfully contested, the court sets it aside. What happens next depends on the circumstances:
- If there’s an earlier valid will, that earlier will applies
- If there’s no earlier valid will, the estate is distributed under Queensland’s intestacy rules, which set out fixed shares for surviving spouses, children and other relatives
- If only part of a will is invalid, the court may set aside only that part
Frequently Asked Questions
How much does it cost to contest a will in QLD?
Costs depend on the ground being run, the complexity of the evidence and whether the matter resolves before trial. Capacity and undue influence claims typically require expert medical evidence and are more expensive than execution challenges. We provide a written cost estimate after our initial review.
Can I contest a will after probate has been granted?
Yes, but it’s harder. Acting before probate is generally simpler and less expensive. Once probate has been granted and assets distributed, additional steps are needed to bring assets back into the estate.
Do I need to prove the will-maker was of unsound mind for the whole time?
No. You need to prove they lacked capacity at the time the will was made. Someone with a fluctuating condition may still make a valid will during a lucid period.
Can I run more than one ground at the same time?
Yes. Capacity and undue influence are commonly run together because the same evidence often supports both.
What if I just think the will is unfair?
Unfairness alone isn’t a ground to contest a will’s validity. If you’re an eligible person who received inadequate provision, a family provision claim is the better pathway.
Get Advice on Contesting a Will in QLD
Contesting a will is technical, evidence-heavy and time-sensitive. Our will dispute lawyers assess the strength of the grounds available to you, gather the evidence needed, and run the claim through negotiation, mediation or trial.
Book a consultation to discuss your matter with our estate litigation team.
