Contesting a Will vs Challenging a Will: Understanding the Difference
When someone contacts our office about a will dispute, the conversation almost always starts the same way.
*”I think I need to contest the will.”*
Sometimes that’s exactly the right course of action.
Often, however, it isn’t.
After acting for Queensland families in Estate Disputes for many years, we’ve found that people frequently use the terms “Contesting a Will” and “Challenging a Will” interchangeably. While they sound similar, they involve two very different legal processes, different legal tests and different outcomes.
Understanding the distinction early can save time, reduce unnecessary costs and help ensure you’re pursuing the legal pathway that best fits your circumstances.
If you’ve recently lost someone close to you and you’re questioning whether a will reflects their true wishes, or whether you’ve been treated fairly, you’re certainly not alone.
These are some of the most common questions we hear.
Before we explain the legal differences, we’ve included a short video where Chris explains the distinction between contesting and challenging a will in straightforward, practical language.
Watch: Contesting a Will vs Challenging a Will
“Estate litigation is rarely just about money”
People often assume estate litigation is driven by greed or family conflict.
In our experience, that’s rarely the full story…
More often than not, people come to us because something simply doesn’t sit right.
Perhaps your father spent years telling the family that everything would be divided equally, only for one child to inherit almost the entire estate.
Maybe your mother relied on you for years while you cared for her, attended medical appointments, managed her finances and supported her through declining health, only to discover those years of commitment weren’t reflected in her final will.
Sometimes a new partner appears late in life. Sometimes a neighbour suddenly becomes heavily involved in someone’s affairs. Occasionally, there are genuine concerns about dementia, declining cognitive function or whether someone understood the document they were signing.
Every family’s circumstances are different.
That’s why it’s so important not to assume that every disagreement with a will is automatically a case of “contesting” it.
The first step is understanding what has actually occurred.
Contesting a will and challenging a will are different legal claims
Although people use these expressions interchangeably, they involve two distinct legal pathways.
A “Contested Will” generally accepts that the will itself is legally valid.
The focus isn’t on whether the document was signed correctly or whether the deceased understood what they were doing.
Instead, the issue is whether the will has made adequate provision for someone who should reasonably have been provided for.
By comparison, “challenging a will” questions whether the document should be recognised as a valid will at all.
That distinction might sound subtle, but it changes everything about the evidence required, the legal arguments available and ultimately the outcome the Court is being asked to determine.
What does it mean to contest a will?
In Queensland, contesting a will usually involves bringing what is known as a Family Provision Application.
These claims don’t suggest the deceased’s wishes should simply be ignored because someone is unhappy with the outcome.
Instead, the Court considers whether an eligible person has been left without adequate provision for their proper maintenance and support.
Whether someone is eligible depends on their relationship with the deceased and the circumstances of the case.
Spouses, children and certain dependants may have rights under Queensland succession law, but eligibility is only one part of the process. The Court must also consider whether further provision is justified.
There isn’t a mathematical formula.
Every family is different.
The Court may consider factors such as:
- the relationship between the deceased and the applicant;
- the applicant’s financial circumstances;
- the size and nature of the estate;
- competing claims by other beneficiaries;
- any disabilities or health concerns;
- contributions made to the deceased during their lifetime; and
- the overall circumstances of the family.
For example, imagine two adult children.
One has enjoyed a successful professional career and is financially secure.
The other spent years caring for an ageing parent, reduced their employment opportunities and now faces significant financial hardship.
Even if the estate was divided equally, those circumstances may still justify closer legal consideration.
Every case turns on its own facts.
Challenging a will is about whether the will is legally valid
Sometimes the concern isn’t about fairness.
It’s about legitimacy.
These matters involve questioning whether the document should ever have been recognised as a valid will.
Common issues include whether the deceased had testamentary capacity, whether they were subjected to undue influence, whether fraud or forgery occurred, or whether the legal requirements for executing the will were properly followed.
One of the more common issues involves testamentary capacity.
As people age, medical conditions such as dementia or cognitive impairment may affect their ability to make complex decisions.
That doesn’t automatically mean a will is invalid.
Many people diagnosed with dementia still retain legal capacity to make a will.
The real question is whether, at the time the document was signed, the person understood what they were doing, understood the extent of their estate and appreciated the people who might reasonably expect to benefit.
These cases often require careful analysis of medical records, solicitor file notes, witness evidence and expert opinion.
Another issue that frequently arises is undue influence.
Families sometimes suspect that someone close to the deceased manipulated or pressured them into changing long-standing testamentary intentions. These allegations are understandably serious and require persuasive evidence. Courts do not lightly set aside a person’s final wishes.
However, where there is genuine evidence that a person’s free will has been overridden, the Court has the power to intervene.
The answer isn’t always obvious
One of the things Chris often explains to clients is that estate litigation isn’t about fitting people into legal categories.
It’s about understanding the story.
Two matters may appear almost identical on the surface but lead to completely different legal outcomes because of one important piece of evidence.
We’ve seen situations where families believed they had grounds to challenge a will, only to discover the deceased had obtained extensive medical assessments before signing it.
We’ve also seen matters where clients assumed they had no legal options, only to learn that they may have been entitled to pursue a Family Provision Application.
That’s why seeking advice early is so valuable.
- Sometimes the advice you receive isn’t to commence proceedings at all.
- Sometimes it’s to negotiate.
- Sometimes mediation offers the best outcome.
- Sometimes the evidence simply doesn’t support a claim.
- Understanding your position before taking action allows informed decisions to be made.
Estate litigation doesn’t always end in court
Many people imagine lengthy court battles whenever they hear the words “estate litigation”.
The reality is often quite different.
A significant number of estate disputes resolve through negotiation or mediation before reaching a final hearing.
Settlement discussions can often preserve relationships, reduce legal costs and allow estates to be administered more efficiently.
Of course, where agreement isn’t possible, Court proceedings may become necessary.
The important point is that litigation should be viewed as one option within a broader dispute resolution process—not necessarily the inevitable outcome.
Time limits matter. Obtain Legal Advice Quickly.
One of the biggest mistakes people make is waiting too long before obtaining legal advice.
Queensland law imposes strict time limits on many estate claims.
Those time limits vary depending on the nature of the dispute, and missing them can significantly affect your legal rights.
If you have concerns about a will, it’s generally far better to seek advice early than to discover later that important deadlines have passed.
Even if you’re unsure whether you have a claim, an early discussion can provide clarity and help preserve your options.
Why choosing the right estate litigation lawyer matters
Estate litigation sits at the intersection of succession law, trusts, evidence and family dynamics.
It’s a highly specialised area of practice that requires careful legal analysis, strategic thinking and, perhaps most importantly, an appreciation that clients are often navigating one of the most difficult periods of their lives.
At ORG Lawyers, we take the time to understand not only the legal issues but also the circumstances that have brought clients through our doors.
- Every family has its own history.
- Every dispute has its own context.
- Our role is to provide practical, straightforward advice so clients understand where they stand and what options are available.
ORG Lawyers is proud to be associated with the Queensland Law Society (QLS), reflecting our commitment to maintaining the highest professional and ethical standards.
We also believe legal education shouldn’t begin only after someone receives a Court document. Through the ORG Lawyers YouTube Channel, Chris regularly explains complex legal topics—including wills, trusts, estate disputes and succession law—in a way that’s accessible, practical and easy to understand.
Chris was also recognised in The Best Lawyers™ in Australia 2026** for Trusts and Estates, an acknowledgement of his experience in this specialised area of law and his commitment to achieving practical outcomes for clients.
If you’re asking questions about a will, start by getting answers
Not every will can be contested.
Not every will should be challenged.
But if something doesn’t feel right, whether you’ve been left out of a will, believe someone exercised undue influence, have concerns about mental capacity or simply don’t understand your legal position, obtaining experienced advice early can make all the difference.
At ORG Lawyers, we assist clients throughout Queensland with estate litigation, will and estate litigation, Family Provision Applications, executor disputes, trust disputes and related succession matters.
The first conversation isn’t about commencing proceedings.
It’s about listening to your circumstances, explaining the law in plain English and helping you understand the options available.
Because every family story is different.
And every estate deserves to be approached with care, experience and respect.
Offering a Solution
This is the reason at O ‘Connor Ruddy and Garrett we offer a free initial assessment for any potential will dispute. We simply listen to your story. We spend the time to understand why you feel it down, and what you want the outcome to look like.
The free initial assessment takes as long as it takes. These initial assessments include getting a copy of the will, understanding what assets are in the estate, talking to the executor, or the executor’s solicitor, and speaking to you and potentially other witnesses.
If you have any will dispute inquiry it costs nothing to know where you stand. So please contact our office for a free initial claim assessment.
