Contesting vs. Challenging a Will: What’s the Difference?

Finding out that you have been left out of a Will, or that the document itself seems suspicious, is an emotionally charged experience. In the world of estate law, people often use the terms “challenging a Will” and “contesting a Will” interchangeably. However, in the eyes of the Australian legal system, they are two distinct paths with different rules, timelines, and requirements.

Choosing the wrong path can lead to unnecessary delays and exhausted estate funds. This guide clarifies the differences so you can make an informed decision about your next steps.

At a Glance: The Core Difference

Before we dive into the details, here is the simplest way to distinguish the two:

• Challenging a Will is an attack on the validity of the document. You are saying the Will itself is “fake” or legally void.

Contesting a Will is an attack on the fairness of the distribution. You accept the Will is valid, but you believe you haven’t been “adequately provided for.”

Challenging a Will: “This Will is Not Valid”

When you challenge a Will, you are asking the Supreme Court to set the purported Will aside entirely. If you are successful, the court may revert to an earlier Will or, if no other Will exists, distribute the estate according to intestacy laws.

Common Grounds to Challenge a Will

To successfully challenge a Will in Australia, you generally need to prove one of the following:

• Lack of Testamentary Capacity: The deceased was not of sound mind (e.g., due to advanced dementia or illness) when they signed the document and did not understand what they were doing.
• Undue Influence: The deceased was coerced or pressured into making the Will. This is more than just “nagging”; it requires proof that the deceased’s free will was overborne by another person.
• Fraud or Forgery: The signature is forged, or the deceased was tricked into signing a document they didn’t know was a Will.
• Lack of Knowledge and Approval: The deceased didn’t fully understand the contents of the Will they were signing.

Tip: Challenging validity is notoriously difficult because the “burden of proof” lies with you. You must provide strong evidence, such as medical records or witness testimony, to prove the deceased lacked capacity.

Contesting a Will: “The Distribution is Unfair”

Contesting a Will, often called a Family Provision Claim, is far more common. In this scenario, you are claiming that the deceased had an obligation to look after you, and they failed to do so.

Who is Eligible to Contest a Will?

You cannot contest a Will just because you are “unhappy.” You must be an eligible person. While laws vary slightly between states, eligible persons in WA include:

• Parents.
• Spouses and de facto partners.
• Children (including adult children and, in some cases, step-children).
• Former spouses (under certain conditions).
• Grandchildren (under certain conditions).

What the Court Considers in Family Provision Claims

When you contest a Will, the court looks at a “sliding scale” of factors:

1. Your Financial Need: Do you have enough assets to support yourself?
2. The Size of the Estate: Is there enough money to give you more without unfairly stripping other beneficiaries?
3. Your Relationship: Were you close to the deceased, or was there a long-term estrangement?
4. Competing Claims: Who else is asking for a piece of the pie?

 

Contesting v Challenging a Will: Key Differences

Feature	Challenging a Will	Contesting a Will
Primary Goal	Declare the Will invalid.	Seek a larger share of assets.
Legal Basis	Fraud, incapacity, or coercion.	Inadequate provision for need.
The Result	Previous Will is used instead (or intestacy).	Distribution under the current Will is “adjusted” by the court.
Who Can Sue?	Anyone with an interest in the estate.	Only “eligible persons” (family/dependents).
Evidence Needed	Medical records, witnesses, etc.	Financial records, proof of relationship.

Disputing a Will: Frequently Asked Questions

1. How long do I have to dispute a will?

Time limits are strict and vary by state. In Western Australia, you generally have 6 months from the date Probate (or letters of administration) is granted. Missing these deadlines often means you lose your right to claim entirely.

2. Can I contest a Will if I have already been granted something?

Yes. If the amount you were left is inadequate for your “proper maintenance and support,” you can still file a Family Provision Claim for a larger share.

3. Will I have to go to Trial?

Not necessarily. Most disputes are resolved through mediation. At TLS, our tactical approach focuses on preparing a robust evidence-based case early on to procure a settlement during mediation, saving you the stress and cost of a full trial.

4. What happens if there is no Will at all?

If someone dies without a Will (known as dying “intestate”), the law follows a set formula to distribute assets. If that formula leaves you in financial hardship, you can still “contest” the distribution by making a claim against the intestate estate.

Why a Tactical Approach Matters

Estate disputes are rarely just about the law; they are about family dynamics and long-held grievances. At Tactical Legal Solutions, we don’t just “process” claims. We act as your strategic partners to:

• Gather Evidence Early: We help you compile the financial and medical records needed to make your case.
• Protect the Estate: We aim for efficient resolutions so the inheritance isn’t eroded by years of legal fees.
• Provide Clarity: We cut through the legal jargon, so you know exactly where you stand.

Don’t let a deadline pass you by.

If you believe you have been unfairly treated or have concerns about a Will’s validity, taking swift action is vital. Contact us to speak with an experienced estate lawyer who can provide the clarity and representation you need.