Challenging a Will When It Feels Unfair | How to Do It and What to Expect

Challenging a will often begins with confusion and unanswered questions. Why were certain people left out? Was there a reason behind the sudden changes in distribution? And most importantly, do you have the legal right to make a claim? 

Courts do not allow just anyone to dispute a will. The law sets clear boundaries around who may challenge it, and being disappointed by the outcome is not enough. You must fall within a legally recognised category and have a direct interest in how the estate is handled. 

Generally, challenges can be brought by spouses, children, and dependents. This includes de facto partners, adopted children, stepchildren, and individuals under the age of 18 years who were financially supported by the deceased.  

Challenging a will requires legal standing. Once you understand where you stand under the law, the next step is to determine whether you have valid grounds to challenge the contents or structure of the will itself. 

What Are the Legal Grounds for Challenging a Will? 

When questions arise about the fairness or legitimacy of a will, the next step is to consider whether there is a valid legal basis to challenge it. A successful challenge depends on proving that the will was flawed in its creation or that the will-maker’s intent was compromised. These legal grounds are established by case law and must be supported with clear evidence. 

Here are common legal grounds for challenging a will: 

1. Lack of Testamentary Capacity
   A will can be challenged if the person who made it did not understand what they were doing. This includes not knowing they were making a will, misunderstanding their assets, or failing to recognise who should be considered. Evidence often includes medical records and witness accounts. 
2. Undue Influence
   If someone pressured the will-maker to change their wishes, the court may set aside the will. This usually involves a person in a position of control, and there must be clear proof that the pressure influenced the outcome. 
3. Fraud or Forgery
   A will can be invalid if it was signed under false pretences, secretly altered, or forged. These claims require strong evidence, such as handwriting comparisons or witness testimony. 
4. Improper Execution
   A will must be properly signed and witnessed to be valid. If it does not meet legal requirements, such as having two independent witnesses, the court may reject it and apply an earlier will or default rules. 

While the legal grounds above focus on whether a will is valid, not every challenge aims to overturn the document entirely. In many cases, the concern is that a valid will has failed to provide proper support to someone who should have been considered.  

There is a common assumption that the person making the will has full control, even over those who relied on them financially, but that is not always how the law sees it. Challenging a will in these situations is possible, though far from simple. It requires meeting strict legal thresholds and providing clear evidence that the omission was unjust. 

How Do Family Provision Claims Work? 

Not every will distributes an estate in a way that reflects the obligations of the person who passed away. When a valid will fails to make proper provision for a close family member or a child who was dependent on the deceased, the law allows for a specific type of challenge known as a family provision claim. 

The table below outlines how family provision claims operate, who may be eligible, what the court considers, and what may result: 

While each case turns on its facts, these claims offer a way to correct unfair outcomes where someone was overlooked or left without support. For anyone considering this type of legal action, understanding the formal steps and timelines is essential. These matters often begin with negotiation, but if that fails, the process will move through more structured legal stages. 

What Is the Process for Challenging a Will? 

Once you have confirmed that you are eligible and have valid grounds, the next step is understanding how the process unfolds. The procedure follows a defined legal path, regardless of whether you are contesting the validity of the will or seeking additional provisions. Being well-prepared from the beginning helps prevent delays and reduces the risk of your claim being dismissed on procedural grounds. 

The following steps outline the general process involved in challenging a will: 

1. Seek Legal Advice
   The first step is to speak with a lawyer who specialises in estate law. They will assess whether your claim is viable and help you identify the correct legal pathway, whether it involves contesting the will’s validity or making a family provision claim. Early advice also ensures that time limits are not missed. 
2. Notify the Executor
   If you are seeking further provision, written notice of your intent must usually be given to the executor of the estate within six months of the deceased’s death. This step preserves your right to apply and gives the estate time to consider resolving the matter without going to court. 
3. File an Application in Court
   If the matter cannot be resolved informally, a formal application must be filed in theappropriate Court. In the case of claims for family provision, this must be done within nine months of the date of death. You will need to prepare an affidavit outlining your relationship with the deceased, your financial needs, and the reasons for your claim. Supporting documents such as medical reports, income statements, and witness declarations may also be required. 
4. Attend Mediation or Proceed to Hearing
   Before going to trial, most cases are referred to mediation. This is an opportunity for all parties to negotiate a resolution without the need for a judge to decide. If mediation fails, the matter proceeds to a hearing where the court will examine the evidence and issue a decision. The outcome may include changes to how the estate is distributed or, in some cases, a declaration that the will is invalid. 

Each of these steps must be followed carefully, and timing is critical. Missing a deadline or filing incomplete documents can affect the outcome of your case. Once the process is underway, the question often turns to how long it will take and what financial and emotional costs may be involved. 

How Long Does It Take to Challenge a Will? 

Some matters can be resolved in a matter of months. Others, particularly those involving multiple parties or complex estates, may take more than a year. Delays often depend on whether the dispute proceeds to trial, how quickly evidence can be gathered, and the willingness of parties to reach a settlement through mediation. 

In general, challenges that are resolved during early negotiations tend to move faster, while those that go to court involve more formal steps and longer timelines. Preparation, disclosure, and court scheduling all affect how long the matter will take from start to finish. 

The total time from beginning the process to reaching a final outcome typically ranges between 6 and 18 months, though particularly contested matters can extend beyond this range. 

Understanding the time involved helps manage expectations and gives you a clearer sense of the emotional and financial commitment required before moving forward. 

How Much Does It Cost to Challenge a Will? 

Costs vary significantly depending on the nature of the claim, the complexity of the estate, and how early the matter is resolved. Below is a general guide to what you might expect: 

Depending on the outcome, legal fees may be paid by each party, or the courts may order that costs be covered by the estate, especially when the claim is considered reasonable and leads to a fairer outcome. If a claim is unsuccessful, the challenger may be required to pay their own legal fees or even those of the estate. 

Beyond the financial cost, these disputes can create tension between family members, particularly when beneficiaries are already in conflict. Mediation is often used to ease this tension and find a resolution without the pressure of a courtroom setting. 

Having a clear view of the potential costs allows you to make an informed decision about whether pursuing the challenge is worthwhile. From here, it becomes important to examine how likely your claim is to succeed. 

What Are the Chances of Success When Challenging a Will? 

Courts look at the strength of the evidence, the type of claim, and how each party presents their case. Claims involving undue influence or lack of capacity are harder to prove and require strong evidence. Family provision claims are more common and have better prospects when there is financial need and a close relationship with the deceased. 

Claims are more likely to succeed when supported by detailed evidence and when brought in a timely and respectful manner. The following factors tend to strengthen a case: 

• Clear financial need or personal hardship 
• A long-standing relationship with the deceased 
• Contributions made to the deceased’s care or estate 
• Evidence that the applicant was dependent on the deceased 
• A will that deviates sharply from earlier arrangements or expectations 

Even strong cases can face challenges. The presence of other legitimate beneficiaries, limited estate assets, or previous disputes may complicate matters. Courts strive for fairness, not equal shares, and often balance competing claims. For those with a well-supported case, the final step is to understand what can happen if the challenge succeeds, or fails. 

What Happens If You Win or Lose the Challenge? 

The court may declare the will invalid, adjust the distribution, or leave it unchanged. 

If a will is found invalid, an earlier valid will applies, or the estate is distributed under intestacy rules. For family provision claims, the court may award a lump sum or adjust the beneficiary shares. 

If the challenge fails, the original will stand. The claimant may also be ordered to pay legal costs. Even claims with some merit can be dismissed if evidence is weak or deadlines are missed. 

The table below outlines the possible outcomes: 

Each outcome carries legal and personal implications. Where possible, seeking early advice and resolving disputes through negotiation can limit damage to family relationships and reduce overall costs. If you are facing uncertainty about your rights or your next steps, speak with a family lawyer to receive the clarity and support you need.