Contesting a Will in Australia: Time Limits and Eligibility by State

Contesting a will in Australia usually means bringing a family provision claim, and the deadline works differently in every state and territory. Some jurisdictions count from the date of death, others from the date of the grant of probate, and confusing the two can be fatal to a claim.

Two Different Ways to Contest a Will

Australian law recognises two distinct ways to contest a will, and they are often confused. The first challenges the will's validity itself, arguing that it should never have taken legal effect, for reasons including the will-maker lacking testamentary capacity, the will not being properly signed and witnessed, the will-maker not truly knowing and approving its contents, undue influence or coercion, or fraud and forgery. If a validity challenge succeeds, the will is treated as if it never existed, and an earlier valid will, or the jurisdiction's intestacy rules, applies instead. The second is a family provision claim, which accepts the will (or the intestacy outcome) as valid but argues it does not make adequate provision for an eligible claimant, most commonly a spouse, partner or child. The two claims have different legal tests, different eligible claimants and, crucially, different and much stricter time limits.

The Time Limit That Differs by What It Runs From

Every state and territory imposes a strict time limit on family provision claims, and the single most important fact to get right is what starts the clock. Only New South Wales and Queensland measure from the date of death. The other six jurisdictions, Victoria, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, all measure from the date the grant of probate or letters of administration is issued, not the date of death. Tasmania's 3-month window from the grant is the shortest in the country. Treating a grant-based deadline as if it ran from death, or a death-based deadline as if it ran from the grant, can cause a genuinely eligible claimant to miss the deadline entirely.

Queensland's statute is sometimes described as giving "6 months", which is not the claim deadline. Section 44(3) of the Succession Act 1981 (Qld) protects a personal representative who distributes the estate no earlier than 6 months after the date of death without having received notice of a claim (9 months if notice was given); it does not shorten the 9-month claim period itself. A claimant in Queensland still has 9 months from death to file, but a personal representative who lawfully distributes under section 44(3) can make it practically difficult to recover from beneficiaries afterwards, which is its own reason not to wait.

Extensions Are Not a Safety Net

Courts in every jurisdiction have some power to extend a family provision time limit, but the power is limited and the estate's distribution status matters enormously. Once a personal representative has fully and properly distributed the estate to beneficiaries, without notice of a claim and in accordance with the relevant protection provisions, an extension is generally no longer available even where the statute technically allows the court to grant one. A court asked to extend time will also usually want a reasonable explanation for the delay and will weigh any prejudice to beneficiaries who have already received their share. This is why every jurisdiction's guidance, and this article, treats the statutory deadline as the real deadline: waiting to see whether an extension might be available is not a substitute for filing, or at minimum notifying the estate of an intended claim, well before time runs out.

Who Can Bring a Family Provision Claim

Eligibility to bring a family provision claim is set separately in each jurisdiction's legislation, and the list of eligible categories is not identical everywhere. A surviving spouse or civil partner, and a child of the deceased (including an adopted child), are eligible claimants in every Australian jurisdiction. Beyond that core group, the categories diverge: several jurisdictions extend eligibility to a de facto partner, a former spouse who has not remarried, a person who was living in a close personal relationship with the deceased, a grandchild who was being maintained by the deceased, a stepchild, or any person who was wholly or partly dependent on the deceased and was a member of their household. Being in one of these categories establishes standing to bring a claim; it does not by itself mean the claim will succeed, since the court must still be satisfied the will (or intestacy outcome) failed to make adequate provision for that person's proper maintenance and support. Because the eligible categories, and the weight given to each, differ by jurisdiction, a person considering a claim, or an executor facing one, should confirm the current eligible-person list under the specific state or territory Act that applies, ideally with a legal practitioner admitted in that jurisdiction.

What a Family Provision Claim Cannot Guarantee

Being eligible to claim is only the first step. A court deciding a family provision claim weighs factors including the size and nature of the estate, the financial position and needs of the claimant and of the other beneficiaries, the length and character of the claimant's relationship with the deceased, any contribution the claimant made to the deceased's estate or welfare, and any competing moral claims on the estate. Courts have wide discretion, and outcomes vary enormously with the facts of each case; no article, and no general guide, can predict whether a particular claim will succeed or estimate what share a court might award. Anyone considering a claim, or defending an estate against one, needs advice from a legal practitioner admitted in the relevant state or territory who can assess the specific facts.

Grounds for Challenging a Will's Validity

A challenge to a will's validity does not depend on the family provision time limits above, but is not risk-free to delay either. Common grounds include lack of testamentary capacity (the will-maker did not understand they were making a will, the extent of their property, or the claims of people who might expect to benefit), improper execution (the will was not signed and witnessed in the way the relevant Wills Act requires), lack of knowledge and approval of the will's contents, undue influence or coercion that overbore the will-maker's own judgement, and fraud or forgery. If any of these grounds succeeds, the challenged will (or the affected part of it) fails, and an earlier valid will takes over, or, if there is none, the jurisdiction's intestacy rules apply. Someone concerned a will might be invalid, or that a grant of probate is about to issue on a will they intend to challenge, can generally lodge a caveat with the relevant Supreme Court probate registry, which pauses the grant while the dispute is investigated. Unlike family provision claims, validity challenges generally have no single fixed statutory deadline, but unreasonable delay, and particularly a delay that allows the estate to be distributed, makes any challenge harder to bring.

Practical Steps Before the Deadline

Because extensions are unreliable once an estate is distributed, the safest course in every jurisdiction is to act well before the statutory deadline, not close to it. That generally means obtaining a copy of the will (available from the executor or the relevant probate registry once a grant issues), confirming the exact date the clock started for that jurisdiction (death or grant), and, if a claim is likely, notifying the executor or their lawyer in writing that a family provision claim is being considered, which can also help slow any distribution under the executor's statutory protection provisions. An executor who receives such a notice, or who is simply managing an estate where the deadline has not yet expired, generally should not distribute the estate until the relevant time limit has passed or the position is otherwise resolved, to avoid personal liability.

Getting Started

Anyone considering contesting a will, on either basis, should start by identifying which jurisdiction's law applies (generally where the deceased was domiciled, or where the relevant property is located), obtaining the will and, once available, the grant of probate, and calendaring the applicable time limit from the correct trigger date. See How to Apply for Probate in Australia for how to find out when a grant has issued, and the Australia Wills and Probate hub for the full set of jurisdiction guides, including Who Inherits Without a Will in Australia where no earlier valid will exists.

This article provides general legal information about contesting a will in Australia. It is not legal advice and does not take into account your individual circumstances. Family provision time limits are strict and vary by jurisdiction; missing one can permanently bar a claim. This information was last verified on 20 July 2026 and reflects the law of New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory. If you are considering contesting a will, or defending an estate against a claim, seek advice from a legal practitioner admitted in the relevant state or territory as soon as possible.