Frequently Asked Questions — Estate Fraud, Probate & Will Disputes

Probate is a court order that confirms a will is valid and authorises the executor to administer the estate. It is generally required when the deceased owned assets in their sole name — particularly real estate, significant bank accounts, or shares. In NSW, probate should generally be applied for within six months of death. In Queensland, similar expectations apply. Some assets (such as jointly held property) pass automatically and do not require probate. Read more in our glossary →

When a person dies without a valid will, their estate is distributed according to intestacy laws. In NSW, the Succession Act 2006 Chapter 4 sets out the order of inheritance. In Queensland, Part 3 of the Succession Act 1981 applies. Generally, the estate goes to the spouse and children first, then parents, siblings, and more distant relatives. If no eligible relatives exist, the estate may pass to the state. An administrator (rather than executor) is appointed to manage the estate. Learn about challenging intestacy →

A straightforward probate application typically takes 4-8 weeks from lodgement in both NSW and Queensland, assuming no objections or complications. However, the total time depends on how quickly the executor gathers the required documents, lodges the application, and responds to any requisitions from the court registry. Contested matters can take significantly longer — months or even years. See our full process guide →

A valid will must generally meet formal requirements: it must be in writing, signed by the will-maker (testator), and witnessed by at least two people who are not beneficiaries. In NSW, these requirements are set out in s 6 of the Succession Act 2006. In Queensland, s 10 of the Succession Act 1981 applies — with a unique additional requirement under s 10(2) that the testator's signature must be in a particular position relative to the attestation clause. Both states have dispensing powers allowing the court to admit informal documents as wills in certain circumstances. Learn about will validity challenges →

No — a will cannot be changed after the will-maker's death. However, beneficiaries can agree to vary the distribution of an estate through a deed of family arrangement, provided all affected beneficiaries consent and no third-party rights (such as creditors or minors) are prejudiced. In some circumstances, the court can also rectify a will that contains a clerical error or does not reflect the will-maker's instructions under s 27 of the Succession Act 2006 (NSW) or s 33 of the Succession Act 1981 (QLD). More for beneficiaries →

A codicil is a legal document that amends an existing will without revoking the entire will. It must be executed with the same formalities as a will — in writing, signed, and witnessed by two people. Codicils are used for minor changes (such as changing an executor or adjusting a specific gift) rather than rewriting the entire will. Multiple codicils can exist alongside a will, and all must be considered together to determine the will-maker's final intentions. See our glossary for more terms →

In probate law, undue influence means coercion that overbears the will-maker's free will — they make the will not because they want to, but because someone else's pressure has deprived them of genuine choice. It is not enough to show persuasion, family pressure, or opportunity to influence. The person alleging undue influence generally bears the burden of proof, and the evidence required is substantial. Full guide to undue influence →

These are distinct legal grounds for challenging a will. Lack of testamentary capacity means the will-maker did not have the mental ability to understand what they were doing when making the will. Undue influence means the will-maker had capacity but was coerced — their free will was overborne by another person. A will can be challenged on both grounds simultaneously, but the evidence for each is different: capacity focuses on medical and cognitive evidence, while undue influence focuses on the relationship between the will-maker and the alleged influencer. Learn about capacity challenges →

Proving undue influence requires evidence of coercion, not merely persuasion or opportunity. Key evidence includes: the nature of the relationship between the deceased and the alleged influencer, the deceased's vulnerability (age, illness, dependency, isolation), the influencer's control over the will-making process (presence during instructions, selecting the solicitor), the result being inexplicable by ordinary motives, and any pattern of controlling or isolating behaviour. Circumstantial evidence is often critical because direct evidence of coercion is rare. Evidence collection guide →

Testamentary capacity is the legal standard for whether a person had sufficient mental ability to make a valid will. The classic test comes from Banks v Goodfellow (1870): the will-maker must understand they are making a will and its effect, understand the nature and extent of their property, comprehend the claims of those who might expect to benefit, and be free from any disorder of the mind that would influence their decisions. Capacity is assessed at the time the will was made, not before or after. Full capacity guide →

No. A diagnosis of dementia does not automatically mean the person lacked testamentary capacity. Capacity is specific to the time the will was made and is assessed against the Banks v Goodfellow test. A person with early or moderate dementia may still have lucid intervals during which they understand what they are doing. Medical evidence — particularly from the treating doctor around the time the will was executed — is critical. The question is not whether the person had dementia, but whether at the specific time they made the will, they understood its nature and effect. Medical evidence guide →

An executor's core duties include: locating the will and applying for probate, identifying and securing estate assets, paying debts and taxes, defending the estate against claims where appropriate, keeping proper accounts, and distributing the estate according to the will. Executors have fiduciary duties — they must act in the best interests of the estate and beneficiaries, avoid conflicts of interest, and not profit from their position beyond what the will allows. Executor resources hub →

Yes. Beneficiaries or other interested parties can apply to the Supreme Court for an executor's removal. Grounds include: serious delay in administering the estate, failure to account, conflicts of interest, self-dealing, dishonesty, or incapacity. The court will consider whether the executor's conduct makes it inappropriate for them to continue and whether removal is in the best interests of the estate and beneficiaries. An independent administrator may be appointed in their place. Executor misconduct guide →

Yes — it is common for an executor to also be a beneficiary. However, this dual role can create conflicts of interest. An executor-beneficiary must still fulfil their fiduciary duties to all beneficiaries impartially. They cannot favour their own interests over other beneficiaries, and they must account for all estate dealings. If a conflict becomes unmanageable, the executor-beneficiary should consider renouncing their executorship or seeking court directions. More for executors →

Beneficiaries have rights to certain information about estate administration, but those rights vary depending on the type of beneficiary. Residuary beneficiaries are generally entitled to accounts of the estate. Specific or pecuniary legatees have more limited rights. An executor must keep proper accounts and provide them when requested. If an executor refuses to provide information, beneficiaries may apply to the court for orders requiring disclosure — and in serious cases, for the executor's removal. Full beneficiary rights guide →

Yes. A beneficiary can challenge a will on several grounds: lack of testamentary capacity, undue influence, fraud or forgery, lack of knowledge and approval, or suspicious circumstances. A beneficiary can also bring a family provision claim if they are an eligible person and adequate provision was not made for them. However, challenging a will is not straightforward — it requires evidence, and there are cost risks. Will challenge guide →

Delay in estate administration is one of the most common beneficiary complaints. However, some delay is normal — probate takes time, assets must be identified and realised, and debts and taxes must be paid. The question is whether the delay is unreasonable. If an executor has taken no steps for months, refuses to communicate, or cannot explain the delay, beneficiaries may have grounds to seek court orders requiring the executor to progress the administration — or in serious cases, for the executor's removal. Executor misconduct guide →

Elder financial abuse involves the illegal or improper use of an older person's money, property, or assets. In estate and inheritance contexts, it commonly includes: pressuring an elderly person to change their will, misusing power of attorney to transfer assets before death, isolating the person from family to control their affairs, and making unauthorised withdrawals from their accounts. It often occurs alongside emotional manipulation and social isolation. Elder financial abuse guide →

Several pathways exist for reporting suspected elder financial abuse. You can contact 1800 ELDERHelp (1800 353 374) — a national phone line providing information and referrals. In NSW, you can contact the NSW Ageing and Disability Commission or the NSW Trustee & Guardian. In Queensland, the Public Guardian and the Office of the Public Guardian have roles in investigating abuse. For urgent situations involving criminal conduct, contact the police. NCAT (NSW) and QCAT (Queensland) can also review the actions of attorneys under enduring powers of attorney. Full reporting guide →

In NSW, a family provision claim under Chapter 3 of the Succession Act 2006 must generally be filed within 12 months from the date of death. The court has discretion to extend this time, but only if sufficient cause is shown. Delay significantly weakens a claim, and extensions are not granted lightly. If you are considering a family provision claim, you should seek legal advice as early as possible — ideally within the first few months after death. NSW Law Hub →

The "probate exception" is a costs rule that applies in probate litigation. Under this exception, if the litigation was caused by the testator's own conduct (for example, by making a will under suspicious circumstances or leaving contradictory instructions), the costs of all parties may be paid from the estate rather than following the usual rule that the loser pays. This is not automatic — the court has discretion and will consider the circumstances of each case. The exception can significantly change the financial dynamics of a probate dispute. More NSW-specific info →

NCAT has limited jurisdiction over estate matters. It can review the actions of an attorney under an enduring power of attorney and hear disputes about POA misuse. However, NCAT does not hear probate disputes, will validity challenges, or family provision claims — those must go to the Supreme Court of NSW. If your concern relates to POA abuse rather than the will itself, NCAT may be a lower-cost and more accessible forum. NSW Law Hub →

Section 10(2) of the Succession Act 1981 (QLD) is a unique Queensland requirement: the testator's signature must be placed at the foot or end of the will — specifically, after the dispositive clauses and before the attestation clause. If the signature is in the wrong position, the will may be invalid, though the court has a dispensing power under s 18 to admit informal documents. This rule has no equivalent in NSW and catches many people unaware. QLD Law Hub →

Under s 488 of the Queensland Criminal Code, forging a will or knowingly using a forged will carries a maximum penalty of 14 years imprisonment. This is one of the strongest criminal provisions specifically targeting will forgery in Australia. It applies to forging a will, uttering (presenting) a forged will, and knowingly acting on a forged will. The existence of this provision reflects the seriousness with which Queensland law treats testamentary fraud. QLD Law Hub →

QCAT has specific jurisdiction over enduring power of attorney (EPOA) disputes in Queensland. It can review an attorney's actions, require the attorney to produce accounts, suspend or revoke an attorney's appointment, and appoint a new attorney or the Public Trustee. QCAT is generally a more accessible and lower-cost forum than the Supreme Court for POA-related issues. However, if the POA abuse is connected to an estate dispute or will challenge, the matter may need to proceed in the Supreme Court. QLD Law Hub →

Costs vary significantly depending on the complexity of the dispute, the number of parties, and whether the matter resolves through negotiation or proceeds to trial. Simple matters may resolve for a few thousand dollars in legal fees. Contested Supreme Court proceedings can cost tens of thousands or more. Many firms — including ours — offer an initial confidential discussion to assess your situation and discuss fee arrangements transparently before you commit to anything. See our fees page →

The timeline depends heavily on the nature of the dispute. A straightforward matter that resolves through negotiation or mediation may take 2-4 months. Contested litigation can take 12-24 months or more if it proceeds to trial. Urgent applications (such as freezing orders or caveats) can be heard within days if the circumstances justify it. The key factors are: the complexity of the evidence, the number of parties, the willingness of parties to negotiate, and court availability. See our process page →

Not necessarily — many estate disputes resolve without a final hearing. Negotiation, mediation, and settlement discussions resolve a significant proportion of matters. Court proceedings are often used to bring parties to the table rather than to obtain a final judgment. However, some matters do require a court determination, particularly where facts are hotly contested or one party is unwilling to engage reasonably. The approach depends on the specific circumstances and evidence. See our full process →