Most people assume that if they are left out of a will, or received less than they expected, they have an automatic right to challenge it. That is not how Queensland succession law works.
The right to challenge a will belongs only to a defined group of people, and the grounds for doing so are narrow. There are two separate pathways: a family provision claim, which argues that adequate provision was not made for an eligible person, and a validity challenge, which argues the will itself should not stand. Each has its own rules, its own time limits and its own process in the Supreme Court of Queensland.
Our solicitors in Springfield and Ipswich help clients across Greater Springfield with contesting wills and estate disputes.
Here is how will challenges generally work in Queensland, and what the time limits mean for anyone considering one.
Key takeaways
- Only spouses, children and dependants can make a family provision claim.
- Proceedings must start within nine months of the date of death.
- Family provision and validity challenges are different processes with different grounds.
This article is general information only and is not legal advice. Every situation is different, and you should speak with a solicitor about your own circumstances.
Who is eligible to challenge a will in Queensland?
Eligibility depends on the type of challenge being made, according to Queensland's Succession Act.
For a family provision claim, the people who may apply are the deceased's spouse, child or dependant. A child includes a stepchild and an adopted child. A dependant is a person who was being wholly or substantially maintained by the deceased at the time of death and who is also a parent of the deceased, a parent of a surviving child of the deceased who is under 18, or a person under 18 themselves. A former spouse may also apply in limited circumstances where they had not remarried or entered a civil partnership and were receiving, or entitled to receive, maintenance from the deceased at the time of death.
For a validity challenge, the Succession Act sets out who may inspect and have a copy of a will. Those people include anyone mentioned in the will, a beneficiary under an earlier will, a spouse, parent or child of the will-maker, a person entitled on intestacy, a parent or guardian of a minor mentioned in the will or entitled on intestacy, a creditor, and a person who may apply for family provision. These are the people with a recognised interest in whether the will is valid.
People who are generally not eligible include siblings, friends, stepchildren where the relationship ended on the divorce of the deceased and the stepchild's parent, and in-laws. Being left out of a will, without more, does not give a person a right to challenge it.
What are the grounds for challenging a will in Queensland?
The two main pathways rest on entirely different grounds, and they are often confused.
A family provision claim does not argue the will is invalid. It accepts the will but asks whether adequate provision was made from the estate for the applicant's proper maintenance and support, under Queensland's Succession Act. If not, the Supreme Court of Queensland may, in its discretion, order such provision as it thinks fit. The Queensland Public Trustee notes that the court weighs the applicant's needs for support and maintenance, age, health, disabilities and finances, the nature of the relationship with the deceased, what the deceased may have wanted, and the needs of others who may share in the estate.
A validity challenge attacks the will itself. Common grounds include that the will-maker lacked testamentary capacity when it was made, that they were subject to undue influence, or that the formalities for execution were not met. Under Queensland's Succession Act a will must be in writing, signed, and signed in the presence of two or more witnesses present at the same time. A document not signed that way can still form a valid will if the court is satisfied the deceased intended it to be their will. Testamentary capacity is the mental capacity a person must have to make a valid will, according to the Queensland Public Trustee.
The Queensland Law Society notes that the general rule is that a person is presumed to have capacity, and that confirmation from a medical assessment is evidence that can meet a later challenge on that ground.
What time limits apply to challenging a will in Queensland?
- › Written notice of an intended family provision application: should be given to the personal representative within six months of the date of death, under Queensland's Succession Act (section 44(3)(a)). A personal representative who distributes the estate six months or more after the death, without notice of a claim, is protected from liability.
- › Starting proceedings: a family provision application must be filed in the Supreme Court of Queensland within nine months of the date of death, under section 41(8) of the Succession Act. Applications made after that period require the court's leave, which is discretionary.
- › After notice is given: where written notice has been given, the personal representative is protected if distribution is made nine months or more after the death, unless they have been told in writing that proceedings have been commenced or served with them. This is why giving notice early matters even before a final decision to file.
- › Validity challenges: no statutory filing period applies in the same way, but court proceedings may be affected by general limitation periods and should not be delayed. Queensland's Succession Act also provides that the will may be rectified by the court within six months of probate being granted, where the court is satisfied the will does not reflect the will-maker's instructions.
- › The six-month wait: the Queensland Public Trustee notes that by law there is a waiting period of six months for people to come forward and contest or make a claim on a will. Acting early within that period preserves options and protects against a distribution that leaves nothing to satisfy an order.
How does challenging a will generally work in Queensland?
Step 1: Talk to us
Get in touch and we will explain how the process generally works, what type of challenge may be available and what the time limits mean in practice.
Step 2: Gather the relevant information
We work through the estate documents with you, including the will, any earlier wills, and evidence about the deceased's circumstances and the relationship. Where a validity challenge is being considered, we identify what evidence of capacity or undue influence may be available.
Step 3: Give notice and prepare the application
Where a family provision claim is being pursued, we give written notice of the intended application to the personal representative within the six-month period and prepare the application for the Supreme Court of Queensland's Wills and Estates List. Under the court's practice directions, first directions hearings are listed within 28 days of filing and the court's aim is to encourage early resolution through mediation.
Step 4: Mediation and resolution
Most claims are referred to mediation at the earliest practical time, according to the Supreme Court of Queensland's practice directions. If mediation does not resolve the matter, the court makes directions toward a trial. We represent you through each stage.
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What does the court consider in a family provision claim?
The Supreme Court of Queensland has a broad discretion and no formula exists, according to the Queensland Public Trustee. What the court weighs includes the applicant's financial needs and resources, their age and health, the nature and length of their relationship with the deceased, what the deceased may have intended, and the competing needs of other people who share in the estate.
A long and close relationship of financial dependence will generally carry more weight than a distant or estranged one. The size of the estate and the needs of other beneficiaries also shape what provision, if any, is appropriate.
"A family provision claim is not about what someone expected to receive. It is about whether the estate made adequate provision for the applicant's proper maintenance and support, which is a different question entirely."
Jade Kickbusch, Principal, Brookwater Legal
When does a will challenge not apply to a person's situation?
Understanding when a challenge is unlikely to succeed is just as important as knowing when one may. A person who simply believes the will is unfair, without being an eligible applicant, cannot bring a family provision claim. Disappointment about the size of a gift, or disagreement with who received the deceased's possessions, is not a ground for either type of challenge.
A family provision claim also cannot be made where the person's only connection to the estate is as a friend, a neighbour, a sibling who was financially independent, or a stepchild where the relationship with the deceased's parent ended on divorce before the deceased's death. The fact that a person cared for the deceased informally does not by itself give them standing, unless they also qualify as a dependant under the Succession Act's definition.
A validity challenge requires evidence, not just suspicion. Old age or illness at the time of making a will does not automatically mean the will-maker lacked capacity. The Queensland Law Society notes that a person is presumed to have capacity, and that evidence of a medical assessment at the time the will was made can answer a later challenge. A challenge based on undue influence, described by the Queensland Public Trustee as a situation where a person was intimidated, pressured or influenced and could not freely decide, is one of the more difficult grounds to establish.
Frequently Asked Questions
Can a sibling challenge a will in Queensland?
Generally not through a family provision claim. Under Queensland's Succession Act, only a spouse, child or dependant of the deceased may apply, and a sibling who was not financially dependent on the deceased does not fall within those categories.
What is the difference between contesting and challenging a will in Queensland?
Contesting a will typically refers to a family provision claim, where an eligible person argues that adequate provision was not made for them. Challenging a will typically refers to a validity dispute, arguing the will should not stand because of capacity, undue influence or execution issues. Both involve the Supreme Court of Queensland but rest on different grounds.
How long does a person have to challenge a will in Queensland?
For a family provision claim, proceedings must be started within nine months of the date of death, under Queensland's Succession Act. Written notice of an intended application is generally given within six months. Applications made after nine months require the court's leave, which is not automatic.
Can a stepchild challenge a will in Queensland?
A stepchild is included in the definition of "child" under Queensland's Succession Act for family provision purposes. However, under the Act the relationship of stepchild and step-parent stops on the divorce of the deceased person and the stepchild's parent, the termination of their civil partnership, or the ending of their de facto relationship, unless the step-parent died while that relationship was still on foot.
What happens to the estate while a challenge is underway in Queensland?
A caveat filed with Queensland Courts stops the grant of probate being issued until the issue is resolved, according to Queensland Courts. Without a caveat, a personal representative who distributes after the relevant periods may be protected from liability, which is why acting early matters.
Do you need a solicitor to challenge a will in Springfield or Ipswich QLD?
Queensland succession law is complex, the time limits are strict and what happens in court depends heavily on the specific circumstances of each estate. A solicitor helps assess whether a challenge is available, manages the notice and filing requirements and represents an applicant through the Supreme Court of Queensland process. Our wills and estates solicitors act for clients across Greater Springfield and Ipswich.
Can a person challenge a will if the deceased died without a valid will in Queensland?
Yes. Under Queensland's Succession Act a family provision application can be made even where the deceased died intestate, that is, without a valid will. The same eligibility rules and time limits apply.
Your Next Steps
Estate disputes in Queensland are time-sensitive, and the windows for giving notice and filing a claim are shorter than most people expect. Acting early, even before a final decision is made about whether to proceed, preserves options and avoids a distribution that could leave a claim with nothing to satisfy it. For families in Springfield, Ipswich and across Greater Springfield, getting legal advice soon after a death is the clearest way to understand whether a challenge is available.
If challenging a will is on your mind, the next step is a straightforward one. Get in touch with the Brookwater Legal team or call (07) 3437 8555, and we'll talk you through how the process generally works.
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External Resources
- Queensland Legislation - Succession Act 1981
- Queensland Courts - Amended Practice Direction 14 of 2023, Wills and Estates List
- Queensland Public Trustee - Family Provision Application
- Queensland Public Trustee - How to Administer a Deceased Estate
- Queensland Law Society - Doubts About a Client's Capacity
Brookwater Legal · This article contains general information only and does not constitute legal advice. It does not take into account your individual circumstances. You should obtain legal advice about your own situation before acting on anything in this article. Liability limited by a scheme approved under Professional Standards Legislation.
