challenging a will or contesting a will
When considering the concepts of “challenging a Will” and “contesting a Will”, these concepts are often thought of as being a single process in disputing a Will. However, although both involve a dispute concerning a Will, they are distinct proceedings and have their own process.
“Challenging a Will” generally indicates a dispute as to the validity of a Will. The intention of this claim is to challenge that the Will is legally defective and for that reason, should not be validated by the Supreme Court.
Common grounds for challenging a Will are as follows:
1. The Will-maker (testator) lacked testamentary capacity when the Will was executed;
2. The testator was pressured, influenced or coerced into making a Will;
3. The testator was deceived into signing a Will or the Will was forged altogether; and
4. The Will was not signed in accordance with the Wills Act 1997 (Vic).
Only persons with a sufficient legal interest may initiate a validity challenge to a Will. This includes the following persons:
5. A person named as a Beneficiary under the last Will;
6. A person who is not named as a Beneficiary under the last Will but was named as a Beneficiary under an earlier Will of the testator;
7. A person who would be entitled to a share of the Estate if the Will were invalidated; and/or
8. A person who is eligible to make an application under Part IV of the Administration and Probate Act 1958 (Vic) (the Act) for a family provision.
A challenge to a Will on the validity of it is generally initiated by any of the above persons before Probate of the Will is granted by the Supreme Court. This is initiated by lodging a caveat against the Probate application, which prevents the Supreme Court from granting Probate of the Will until the “challenge” to the Will has been resolved and any caveat withdrawn.
If a challenge to a Will on the validity of it is initiated after Probate of the Will has been granted, the eligible person will be initiating an application for revocation of the Probated Will, to revoke the Will.
If the Supreme Court determines that the challenged Will is invalid, or an application to revoke the Probated Will is successful, the Estate will be administered and distributed in accordance with:
9. Any prior Will of the testator, once validated by the Supreme Court; or
10. If no earlier valid Will exists, the laws of intestacy.
In summary, challenging a Will generally refers to a dispute as to the Will’s validity and it typically arises where concerns exist regarding the circumstances in which the Will was prepared or modified, such as the reason for its creation or alteration, the manner in which it was made and/or whether it was properly executed correctly. It generally seeks the Will to be invalidated altogether.
“Contesting a Will” generally refers to a Part IV claim under the Act for a family provision order. Unlike a validity challenge, the intention of this claim is not to invalidate the Will. Instead, the Will is accepted as valid, but it is alleged that the Will does not make adequate provision for an eligible person’s proper maintenance and support.
Only eligible persons described in Section 90 of the Act can contest a Will under Part IV of the Act. The applicants of a Part IV claim commonly include the following eligible persons:
11. The spouse/domestic partner (which includes certain former partners) of the testator;
12. The children/stepchildren of the testator;
13. Certain dependants (which can include the grandchildren or registered caring partners) who were dependant on the testator.
The timeframe within which an eligible person may contest a Will (by bringing a Part IV claim for a family provision order) is generally required to be commenced within six months from the date on which Probate of the Will is granted by the Supreme Court. This is referred to as the “six-month statutory period”.
For example, if Probate of a Will is granted by the Supreme Court on 10 January 2026, an eligible person will generally have until 10 July 2026 to commence a contest to the Will. In special circumstances, an application may be made to extend this period; however, an application for an extension is at the discretion of the Supreme Court and the Supreme Court will consider whether an extension is appropriate.
A contest is generally initiated after Probate of the Will has been granted and before the expiration of the six-month statutory period. It is generally initiated by the eligible person (or their legal representative) notifying the Executor (or the Executor’s legal representative) of their intention to contest the Will. Following this notification, the proceeding must be commenced and served in accordance with the Supreme Court’s procedures, which includes their prescribed timeframes for filing and serving.
If an eligible person is successful, the Will is not invalidated, unlike the typical intentions of challenging a Will. Instead, the Will remains valid, but the Supreme Court may order that further or different provisions be made from the Estate, with the Executor required to follow those orders.
In summary, contesting a Will generally concerns the inadequate provisions made under a Will. It typically arises where an eligible person contends that the Will does not make adequate provision for their proper maintenance and support and seeks orders to alter the distribution under the Will.
In both challenged and contested Wills, the Supreme Court has strict requirements and timeframes that need to be followed. It is therefore strongly suggested that if you are a party to a challenged or contested Will, that you engage a legal representative to ensure that you are meeting all the prescribed timeframes for filing and serving.
If you require advice in relation to challenging or contesting a Will or are an Executor and someone else is challenging or contesting, please contact our office on (03) 9707 1155 or via email at admin@wslegal.com.au.