Best Will Dispute Lawyers in Australia

Compare will dispute lawyers who contest and defend wills under the state family provision laws, such as Chapter 3 of the Succession Act 2006 (NSW) and Part IV of the Administration and Probate Act 1958 (Vic). Time limits are short: a family provision claim in NSW must be filed within 12 months of the death, and in Victoria within 6 months of the grant of probate.

If you think you have been left out of a will, or left too little, the first step is to confirm whether you are an eligible person in the state where the deceased lived and to note the deadline. If you are the executor and a claim has been threatened, do not distribute the estate until the claim is resolved.

What does a will dispute lawyer do?

A will dispute lawyer, also called a contesting a will lawyer or estate dispute lawyer, acts in claims about who receives a deceased estate. Typical tasks are:

1. Assess eligibility and the strength of a claim under the state family provision law.
2. File a claim in the Supreme Court, usually a summons with a supporting affidavit.
3. Lodge a caveat to stop a grant of probate while the validity of a will is investigated.
4. Negotiate settlements and represent clients at mediation.
5. Defend claims for executors and beneficiaries.
6. Represent parties at the final hearing and on any appeal.

What types of will dispute are there?

Will disputes fall into two main types, and a lawyer's first job is to work out which one applies.

Family provision claims

A family provision claim argues that the will, or the intestacy rules, did not make adequate provision for an eligible person. The will stays valid, and the court orders a share or a larger share out of the estate. Eligibility is set by each state's law. In NSW it includes a spouse, a de facto partner, a child and a former spouse, among others listed in section 57 of the Succession Act 2006. In Victoria, the court must also be satisfied that the deceased had a moral duty to provide for the applicant, under section 91 of the Administration and Probate Act 1958.

Validity challenges

A validity challenge argues that the will should not be admitted to probate at all. The Supreme Court of NSW lists these grounds:

• the will was not executed according to the formal requirements;
• the will-maker lacked testamentary capacity;
• the will-maker lacked knowledge and approval of the will;
• the will is a forgery, or was made under undue influence or by fraud.

A person with an interest in the estate can lodge a caveat to stop a grant. In NSW, a caveat stays in force for 6 months from filing. If a validity challenge succeeds, an earlier will or the intestacy rules apply instead.

How long do you have to contest a will?

The time limit to contest a will is set by each state and territory and starts from different events: as little as 3 months after the grant in Tasmania, 12 months after the death in NSW and 12 months after the grant of administration in the Northern Territory. Every jurisdiction allows the court to extend time in some circumstances, but an extension is not automatic.

In Queensland, an executor who has no notice of a claim is protected if they distribute the estate 6 months or more after the death, under section 44 of the Succession Act 1981. A claimant there should give the executor written notice well before that date.

When do you need a will dispute lawyer?

You need a will dispute lawyer when a deadline is close, when a caveat or claim has been filed, or when the estate has been partly distributed. You also need one if the dispute involves assets outside the will, such as jointly owned property or superannuation, because the rules on what the court can reach differ between states.

How much does a will dispute lawyer cost?

Legal fees in a will dispute vary widely with the size of the estate and how far the matter goes. A claim that settles at mediation costs each party far less than one that runs to a final hearing, but no body publishes average figures, so the only reliable guide is a written estimate for each stage from the lawyer you are considering.

Common fee models are:

• Hourly rates under a written costs agreement.
• Fixed fees for stages, such as an initial assessment or mediation.
• Conditional ("no win, no fee") agreements, where fees are payable only on a successful outcome. Compare No Win No Fee Lawyers in Australia for how these agreements work.

The court decides who pays. Legal Aid NSW notes that costs do not always come out of the estate, and an unsuccessful claimant can be ordered to pay their own costs and the other side's costs. In South Australia, section 119 of the Succession Act 2023 gives the court a discretion to order costs out of the estate or against a party. Court filing fees are separate; see Court Filing Fees in Australia.

Defending a claim as an executor

An executor who receives a claim must hold the estate until the claim is resolved. NSW Government guidance for executors states that the executor is responsible for defending legal claims against the estate, and must wait until a formal contest or claim is resolved by the court before distributing any assets. The executor's side of a claim usually involves these steps:

1. Secure the estate and stop any distribution.
2. Check the deadline and whether the claimant is an eligible person in that state.
3. Gather evidence of the estate's assets and debts, and of the deceased's reasons for the will.
4. Attend mediation. In NSW, all family provision applications are referred to mediation.
5. Defend at a hearing if the claim does not settle.

In Queensland and Victoria, the Acts give executors limited protection for distributions made after set periods without notice of a claim. A lawyer can advise whether that protection applies.

How to choose a will dispute lawyer

1. Litigation experience. Ask how many family provision or probate disputes the lawyer has run in your state's Supreme Court.
2. Practising certificate and accreditation. Check the law society register, and see What Is an Accredited Specialist Lawyer?.
3. Costs disclosure. Ask for a written estimate to mediation and to a final hearing, and what happens to costs if the claim fails.
4. Deadline check. A good first meeting confirms the time limit in writing.

Our ranking method is set out in how we rank law firms.

Will dispute guides

• Contesting a Will in Australia: who can claim in each state, the process and costs.
• What Is Probate and How Do You Apply?: how grants work, and where caveats fit in.

For drafting wills or probate applications rather than disputes, compare wills & estates lawyers in Australia.