Challenges to a Will: Contesting the Validity and Ensuring a Fair Distribution


Contesting a will is an emotionally charged and legally complex process that often involves challenging the validity of a deceased person’s will or seeking a more equitable distribution of assets. Subject to stringent regulations to protect the interests of both the deceased’s wishes and potential beneficiaries, there is no shortage of hoops to be jumped through in order to contest a will. In this blog, we will explore the challenges to a will, including reasons for contesting a will and the legal process for initiating a will contest, as well as strategies for ensuring a fair distribution and resolving will disputes.

Possible Reasons for Contesting a Will

Contesting a will can be a daunting and emotionally charged endeavour, often undertaken in situations where concerns or disputes arise regarding the distribution of a deceased person’s assets. In Australia, the legal framework surrounding will contests is designed to safeguard the intentions of the testator – the person who made the will – while still ensuring that beneficiaries are treated fairly. A challenge can be based on a number of grounds, including: 

Lack of Testamentary Capacity

Testamentary capacity refers to a person’s ability to understand the nature and effect of making a will. Contesting a will on these grounds may arise if there are concerns about the testator’s mental capacity at the time of drafting the will. This can be in reference to diseases such as dementia, drug and alcohol use or other changes in brain function, including acquired brain injuries. 

Undue Influence

If it is believed that the testator was coerced, manipulated, or pressured into making specific provisions in the will, a contest may be initiated based on undue influence. Any manipulative action that causes the will-maker to go against their wishes can be considered coercion and used as grounds to contest the will as a result of undue influence, including blackmail and threats, but also flattery.


Contesting a will due to fraud involves showing that the will was created under fraudulent circumstances, such as forged signatures or misrepresentations. Replacing a will with something that is not the original document or altering the document without the knowledge of the testator could be considered grounds to contest the will.

Improper Execution

There are specific conditions that must be met for a will to be considered valid – in NSW, it must include the signature of the testator and two witnesses, neither of which can be named as beneficiaries. Wills must adhere to these specific formalities for execution, and can be contested if there are issues with how it was signed, witnessed, or dated. 

Overview of the Legal Process for Initiating a Will Contest

In New South Wales, a will can be contested through two main channels – via a Family Provisions Claim (FPC) or on the grounds that it is invalid. In order to contest a Will through an FPC, the person contesting must be an ‘eligible person’, meaning that they meet a number of clearly defined criteria. Whichever route is taken, initiating a will contest in Australia involves several steps: 

Consultation with a Solicitor:

The first step is to seek legal advice. Maguire & McInerney have extensive experience in Wills and Estates litigation, and can assess the merits of a case, providing guidance on the best course of action. 

Lodging a Caveat:

Probate is an Order granted by the Supreme Court of NSW confirming the validity of a will. However, in order to prevent Probate, a caveat can be lodged with the Supreme Court. This temporarily halts the distribution of assets until the dispute is resolved. 

Commencing Legal Proceedings:

If contesting the will is necessary, formal legal proceedings are initiated. The court will hear the case and decide whether the will is valid or should be altered. Engaging a legal professional can help ensure that the proceedings are carried out in line with your best interests. 

Ensuring a Fair Distribution and Resolving Will Disputes

When conflicts arise over a will’s provisions, understanding the options available to work through these can help to mitigate additional conflict and ensure a swift resolution. Prioritising fairness, efficiency, and the preservation of relationships can mean exploring alternatives such as mediation and negotiation, as well as understanding how the court addresses these disputes and the potential outcomes can be instrumental in achieving an equitable resolution. There are a number of options available under Australian law to ensure a just distribution of a deceased person’s estate, and to effectively manage disagreements which arise as part of the process: 

Alternatives to Litigation

Litigation can be costly, time-consuming, and emotionally draining. Mediation and negotiation are alternative dispute resolution methods that can help parties reach a fair and amicable settlement. 

Court Outcomes

In the event that the court decides the will is invalid or needs alterations, the Estate distribution will be determined accordingly. The court may order a new will or distribute the assets according to intestacy laws. 

Seeking Legal Advice and Representation

Contesting a will or defending its validity can be a complex legal process. Seeking legal representation is vital to navigate the intricacies of Australian law effectively.

Maguire & McInerney can help you resolve disputes around wills and estates, with the team working to get the best outcome possible and ensuring that the client’s rights and interests are protected throughout the proceedings. 


Contesting a will in Australia is a challenging and regulated process, but it serves to protect the interests of beneficiaries and the deceased person’s true intentions. Common grounds for contesting a will include lack of testamentary capacity, undue influence, fraud, and improper execution.

To ensure a fair distribution and resolution of disputes around Wills and Estates, alternatives like mediation and negotiation should be explored before resorting to litigation. While the court’s decisions will depend on the individual circumstances, they aim to uphold the principle of fairness and justice.

Seeking legal advice and representation when contesting a Will or defending its validity is crucial. Maguire & McInerney have a wealth of experience across Wills and Estates, and are here to help you navigate the complex legal landscape and protect the rights and interests of all parties involved.