Probate Disputes in Queensland — Types, Procedure & Resolution

What is a probate dispute in Queensland?

A probate dispute — also known as a contested probate or contentious probate — is any legal challenge arising in connection with the validity of a will or the administration of a deceased estate in the Supreme Court of Queensland. Probate disputes in QLD are governed by the Succession Act 1981 (QLD) and the Uniform Civil Procedure Rules 1999 (QLD) Chapter 15, which sets out the procedure for proceedings in the Court's probate jurisdiction.

Probate disputes are distinct from family provision claims. A family provision claim asks the Court to order further provision from an estate for an eligible applicant — it accepts the will is valid but argues the distribution is inadequate. By contrast, a probate dispute challenges the will itself: its validity, its meaning, or the conduct of those charged with administering it.

In Queensland, the Supreme Court manages probate disputes through the Probate List, a dedicated case management list designed to ensure that contested estates are dealt with efficiently and proportionately. Probate disputes are serious litigation: they can delay the administration of an estate for months or years, drain estate assets through legal costs, and create lasting division among family members. Understanding the types of disputes, the procedure, and the resolution options is essential before embarking on this path.

Common types of probate disputes in Queensland

Probate disputes in QLD take many forms. Below are the most common categories, each of which involves distinct legal principles, evidence requirements, and procedures.

1. Validity Challenges

A validity challenge contends that the will admitted to probate — or proposed for probate — is not the true last will of the deceased. Grounds include lack of testamentary capacity, undue influence, fraud or forgery, want of knowledge and approval, and suspicious circumstances. In QLD, the Succession Act 1981 s 10(2) positional signature rule (requiring the signature at the foot or end of the will) can also form the basis of a validity challenge where the will was not properly executed. See our separate page on Challenging a Will in QLD for a comprehensive treatment of these grounds.

2. Executor Conduct Disputes

Disputes arise where beneficiaries or co-executors have concerns about an executor's conduct in administering the estate. An executor in QLD owes fiduciary duties to the beneficiaries. Allegations may include: failure to collect and protect estate assets, unreasonable delay in administration, failure to account, self-dealing or conflicts of interest, paying debts in an improper order, disposing of estate property at an undervalue, or failing to distribute the estate when due. Executor conduct disputes often precede applications for removal of the executor.

3. Construction Disputes

A construction dispute arises where the terms of a will are ambiguous, unclear, or capable of more than one interpretation. The Court is asked to determine the true meaning of the will's provisions. Common construction issues in QLD include: identifying the subject matter of a specific gift, interpreting class gifts (e.g. "to my grandchildren"), resolving inconsistencies between clauses, and determining whether a gift has been adeemed (the asset no longer exists at death). Construction disputes are determined by the Court on the basis of the words used in the will, read in light of the surrounding circumstances known to the testator.

4. Family Provision Claims

While technically distinct from a probate dispute, family provision claims are frequently initiated alongside or in the alternative to validity challenges. Under Part 4 of the Succession Act 1981 (QLD), eligible applicants (spouses, children, dependants) may apply to the Court for further provision from an estate if the will — or the intestacy rules — fails to make adequate provision for their proper maintenance and support. Family provision claims in QLD are subject to strict time limits: an application must generally be made within 9 months of the date of death, although the Court may extend time in limited circumstances.

5. Removal of Executor

Where an executor is unable or unwilling to discharge their duties properly, the Court may remove them under s 6 of the Succession Act 1981 (QLD) or under the Court's inherent jurisdiction. Grounds for removal in QLD include: misconduct or breach of fiduciary duty, conflict of interest between the executor's personal interests and their duties, unfitness due to incapacity, bankruptcy, or criminal conduct, unreasonable delay in administration, or a breakdown in the relationship between co-executors that renders administration impossible. Removal is a serious remedy — the Court will not remove an executor lightly, but it will do so if the welfare of the beneficiaries requires it.

6. Competing Grants

A competing grant dispute arises where two or more persons each claim to be entitled to a grant of probate or letters of administration in the same estate. This may occur where: there are competing wills and a dispute about which is the last valid will, different family members seek letters of administration on intestacy, or a person claims to be a creditor entitled to administer the estate. In QLD, competing grant applications are determined in the Probate List. The Court will hear all claimants and determine the appropriate grant according to the rules of priority set out in the Uniform Civil Procedure Rules 1999 and the general law.

7. Lost Wills

A lost will dispute arises where the original will cannot be found after the testator's death. In QLD, s 24(2) of the Succession Act 1981 creates a rebuttable presumption that a will that was last known to be in the testator's possession and cannot be found at death was destroyed by the testator with the intention of revoking it. To rebut this presumption, the propounder must produce evidence — on the balance of probabilities — that the will was not destroyed with the intention of revoking it. Circumstances that may rebut the presumption include: evidence the testator lacked capacity or opportunity to destroy the will, the will's destruction being consistent with accidental loss rather than intentional revocation, or evidence the testator affirmed the will's contents shortly before death. A copy of the lost will may be admitted to probate if the presumption is rebutted and the Court is satisfied of the will's contents.

Probate disputes require early action

If you are aware of circumstances that may give rise to a probate dispute, do not delay. Evidence deteriorates quickly after death — medical records may be harder to obtain, witnesses' memories fade, and the original will may become harder to access. Once probate is granted and the estate distributed, recovering assets becomes vastly more difficult. If probate has not yet been granted, a Notice of Intention to Oppose should be filed with the Supreme Court registry to prevent a grant being made without notice to you. Seek urgent QLD advice →

The QLD Supreme Court Probate List procedure

The Supreme Court of Queensland manages contested probate matters through the Probate List, a specialist case management list supervised by a judge. The Probate List procedure is designed to ensure that disputes are resolved efficiently and proportionately, with an emphasis on early identification of issues, narrowing of disputes, and — where possible — resolution without trial.

The typical stages of a probate dispute proceeding in the QLD Probate List are:

Notice of Intention to Oppose

File the Notice with the Supreme Court registry setting out grounds of opposition before probate is granted.

Originating Application

File proceedings in the Probate List under UCPR Chapter 15 seeking orders for the relevant relief.

Directions Hearing

The Court makes directions for pleadings, disclosure, evidence, and refers the matter to mediation if appropriate.

Mediation

Most Probate List matters are referred to mediation. Many disputes resolve at or shortly after mediation.

Trial

If the dispute does not resolve, the matter proceeds to trial before a judge. Contested probate trials are heard in solemn form.

Note: In QLD, grants of probate in common form (uncontested) may be made by a registrar. Where a Notice of Intention to Oppose has been filed, the grant cannot be made in common form — the matter must be referred to a judge for determination in solemn form. The Probate List judge may also make orders for the separate determination of preliminary issues, such as a threshold question about the validity of a will, to narrow the scope of the dispute and reduce costs.

Notice of Intention to Oppose

A Notice of Intention to Oppose is the most critical procedural step in a QLD probate dispute. It is the document that converts an uncontested probate application into a contested matter.

What it does

The Notice of Intention to Oppose is filed with the Supreme Court of Queensland registry and notifies the Court that you intend to oppose a grant of probate or letters of administration. Once a Notice is filed:

The Court will not seal a grant of probate or letters of administration without giving you notice and an opportunity to be heard.
The matter is referred to the Probate List for case management by a judge.
The applicant for probate must proceed by way of solemn form proceedings — a full hearing before a judge — rather than the simpler common form procedure before a registrar.
The Court may make directions about the filing of evidence and the future conduct of the matter.

When to file

A Notice of Intention to Oppose should be filed before probate is granted. Once probate has been granted, the opportunity to file a Notice is lost. If probate has already been granted, your remedy may be to commence proceedings to revoke the grant — a more difficult and costly path. File the Notice as soon as you form a genuine concern about the validity of the will or the suitability of the proposed executor.

Grounds required

The Notice must set out the grounds on which you oppose the grant. These must be genuine grounds — the Court may strike out a Notice that is frivolous, vexatious, or filed for an improper purpose. Common grounds stated in a Notice include: lack of testamentary capacity, undue influence, forgery, suspicious circumstances, want of knowledge and approval, and defective execution.

Consequences of filing

Filing a Notice of Intention to Oppose is not a step to be taken lightly. The Court takes a dim view of Notices filed as a tactical device to pressure the executor or delay administration. A person who files a Notice without proper grounds may face an adverse costs order — potentially on an indemnity basis. Conversely, a properly grounded Notice protects your right to be heard before a grant is made and preserves your ability to challenge the will. Always obtain legal advice before filing a Notice.

Withdrawing a Notice

If the dispute is resolved or you no longer wish to oppose the grant, the Notice may be withdrawn. In QLD, a Notice of Intention to Oppose may be withdrawn by consent of all parties or with the leave of the Court. The withdrawal should be formalised in writing and filed with the Court registry to ensure the probate application can proceed.

Mediation and settlement in QLD probate disputes

Mediation is a central feature of probate dispute resolution in Queensland. The Supreme Court Probate List judge will almost always refer a contested probate matter to mediation — often at the first directions hearing. The Court takes the view that family disputes over estates are particularly well suited to negotiated resolution, given the emotional and relational dimensions that are often present alongside the legal issues.

How mediation works in QLD probate disputes

Mediation in a QLD probate dispute is typically conducted by an experienced mediator — often a senior barrister or retired judge — who is independent of both parties. The mediation is private and confidential, and nothing said in the mediation can be used in later court proceedings if the matter does not settle. The mediator facilitates negotiation between the parties but does not impose a decision.

Common settlement outcomes

Probate disputes that settle at mediation often resolve on terms that include:

Agreement as to validity: The parties agree that a particular will is valid and should be admitted to probate, sometimes with conditions.
Financial adjustment: A party who has raised a validity challenge agrees to withdraw their opposition in return for a payment or a share of the estate — often structured as a deed of family arrangement.
Change of executor: The parties agree that a different person (often an independent professional such as a solicitor or trustee company) should administer the estate.
Costs agreement: The parties agree on how the costs of the dispute will be borne — whether from the estate or by the parties personally.
Partial resolution: The parties agree on some issues and narrow the remaining issues for determination by the Court, reducing the scope and cost of the trial.

Court-annexed mediation

The Supreme Court of Queensland maintains a list of approved mediators. The Court may order the parties to attend mediation and may specify the mediator. If the parties cannot agree on a mediator, the Court will appoint one. The costs of mediation are typically shared equally by the parties or borne by the estate, subject to any agreement or Court order to the contrary. Failure to participate genuinely in mediation may result in adverse costs consequences at trial.

Costs in probate litigation

Costs in QLD probate litigation are governed by the general costs discretion of the Supreme Court under the Uniform Civil Procedure Rules 1999, as modified by principles specific to probate disputes.

The general principle

In ordinary civil litigation, costs follow the event — the losing party pays the winning party's costs. Probate litigation operates differently. The Court has recognised that in probate disputes, a different approach to costs is warranted because the Court's concern is to ensure that the true last will of the deceased is given effect. Several costs principles apply:

Costs out of the estate: Where the testator is found to have caused the litigation by their own conduct — for example, by making a will in circumstances of ambiguity, by giving contradictory instructions, or by failing to have their capacity assessed — the Court may order that the costs of all parties be paid out of the estate. This is sometimes called the "testator's fault" principle.
Costs follow the event: Where there is no fault on the part of the testator, the ordinary rule that costs follow the event may apply. A party who unsuccessfully challenges a will may be ordered to pay the costs of the party who propounded it — potentially on an indemnity basis if the challenge is found to have been unreasonable.
Costs where there were reasonable grounds to investigate: Even where a challenge is unsuccessful, if the party who brought it had reasonable grounds to investigate the validity of the will — for example, because of suspicious circumstances known at the time — the Court may order that their costs be paid out of the estate or that each party bear their own costs.
Indemnity costs: The Court may order costs on an indemnity basis where a party has conducted the litigation unreasonably, including where a Notice of Intention to Oppose was filed without proper grounds, where allegations of fraud or forgery were made without sufficient evidence, or where a party has refused a reasonable offer of settlement and achieved a worse result at trial.

Costs in probate litigation are highly discretionary and fact-specific. The Court will consider the conduct of the testator, the reasonableness of the parties, the strength of the evidence, and offers of settlement made. For this reason, obtaining early legal advice about the likely costs exposure — and making carefully considered settlement offers — is critical.

Timeframes in QLD probate disputes

Probate disputes in Queensland are subject to several important time considerations:

Before probate is granted: A Notice of Intention to Oppose must be filed before probate is granted. Once probate is granted in common form, the opportunity to file a Notice is lost. If you have concerns about a will, act promptly.
No fixed limitation period for validity challenges: There is no fixed limitation period under the Succession Act 1981 (QLD) for challenging the validity of a will. However, this does not mean you can delay. The Court may refuse relief on the basis of delay (the doctrine of laches) if the delay has prejudiced other parties or if third-party rights have intervened. In practice, validity challenges should be brought as soon as the grounds are known.
Family provision claims: An application for family provision under Part 4 of the Succession Act 1981 must be made within 9 months of the date of death. The Court may extend time, but only in limited circumstances and where the applicant provides a satisfactory explanation for the delay.
Probate List timetabling: Once proceedings are commenced in the Probate List, the Court will set a timetable for the steps required before trial. The time from commencement to trial varies depending on the complexity of the dispute and the Court's resources, but parties should expect that a contested probate trial will take 12–18 months (or longer) from commencement to final hearing.
Appeals: A decision of the Supreme Court in a probate matter may be appealed to the Court of Appeal within 28 days of the judgment. Any appeal extends the timeline significantly.

Evidence needed in probate disputes

The evidence required in a probate dispute depends on the nature of the challenge. However, certain categories of evidence are common to most probate disputes in QLD:

The original will: The original will is the primary document in any probate dispute. It should be examined for formal compliance with s 10 of the Succession Act 1981, including the s 10(2) signature position requirement. The original should be secured and preserved — the Court will need to inspect it.
Medical records: GP notes, specialist reports, hospital records, cognitive assessments, and medication records for the period around the execution of the will. These are critical for capacity challenges and for understanding the testator's vulnerability to influence.
Solicitor's file: The complete file of the solicitor who prepared the will — including attendance notes, file notes of instructions, correspondence, draft wills, and any notes about the testator's capacity or the presence of other persons during instructions.
Earlier wills: All previous wills and codicils made by the testator, showing the pattern of testamentary intentions over time. Sudden departures from a longstanding pattern may support a challenge.
Witness evidence: Statements from family members, friends, carers, treating doctors, and others who interacted with the testator around the time the will was made. Evidence about the testator's mental state, their relationships, and their expressed intentions is often crucial.
Attesting witness evidence: The witnesses to the will's execution should be identified and interviewed. What did they observe about the testator's condition? Were they independent or connected to a beneficiary? Were proper execution formalities followed?
Financial records: Bank statements, property records, share certificates, and superannuation statements showing the testator's assets at the relevant time. These are relevant to the testator's knowledge of their property and to any allegations of financial misconduct.
EPOA documents: If an enduring power of attorney was in place, the EPOA document and the attorney's records should be reviewed. Evidence that an attorney was involved in will changes or exerted pressure on the testator may support an undue influence challenge.
Correspondence and communications: Letters, emails, text messages, and social media records that shed light on the testator's relationships, intentions, and state of mind.
Forensic evidence: Where forgery is alleged, handwriting analysis, ink dating, and forensic document examination may be required. In QLD, the criminal dimension of forgery (s 488 Criminal Code 1899) means that forensic evidence must meet a high standard.

What to do if you are involved in a probate dispute

Whether you are challenging a will or defending one, being involved in a probate dispute in QLD can be daunting. The following steps provide a practical guide:

Obtain legal advice immediately. Probate disputes involve complex legal principles, procedural rules specific to the Probate List, and significant costs exposure. Do not attempt to navigate the process without specialist legal advice from a practitioner experienced in QLD probate litigation.
Secure all relevant documents. The original will, medical records, solicitor files, earlier wills, and financial records should be identified and preserved as soon as possible. Documents may be lost or destroyed if not secured early.
Identify the key legal issues. Is the dispute about validity, construction, executor conduct, or a combination? Each type of dispute has different legal requirements and evidence needs. Your legal team will help you identify the issues and assess the strength of your case.
Consider your costs exposure. Probate litigation is expensive. Understand the costs principles that apply in QLD and assess — realistically — what you stand to gain compared with what the litigation may cost. Legal advice should include a frank assessment of costs risks.
File a Notice of Intention to Oppose if needed. If probate has not been granted and you intend to challenge the will, a Notice should be filed promptly. This preserves your position and prevents a grant from being made without notice to you.
Engage with mediation constructively. Most probate disputes in QLD resolve at mediation. Approach mediation with a genuine willingness to explore settlement. The cost and emotional toll of a trial are substantial, and settlement on reasonable terms is often the best outcome for all parties.
Protect estate assets. If there is a risk that estate assets may be dissipated — for example, if the executor is alleged to be misappropriating funds — consider whether an application for an injunction or the appointment of an interim administrator is warranted. The Court can make orders to preserve estate assets pending the resolution of the dispute.
Look after yourself. Probate disputes are stressful. They often involve family members on opposite sides and can reignite old grievances. Seek support — whether from a trusted friend, a counsellor, or a support network — and try to separate the legal dispute from the personal relationship.

Need advice about a QLD probate dispute?

Probate disputes require specialist knowledge of the Succession Act 1981 (QLD), the Supreme Court Probate List procedure, and the unique features of QLD succession law — including the s 10(2) signature position rule, s 18 dispensing power, s 24 lost will presumption, and the costs principles that apply in probate litigation. We can assess your position, identify the evidence you need, and give you a candid assessment of your prospects and costs exposure before you commit to litigation. Contact us for a confidential, obligation-free discussion.

Confidential QLD Case Review File Notice of Intention to Oppose

Frequently asked questions — QLD probate disputes

A probate dispute challenges the validity of the will itself — it argues that the will is not the true last will of the deceased because it was affected by lack of capacity, undue influence, fraud, or some other legal defect. If successful, the will may be set aside and an earlier will — or the intestacy rules — may apply instead. A family provision claim, by contrast, accepts the will is valid but argues that it fails to make adequate provision for the applicant's proper maintenance and support. The Court may order that further provision be made from the estate for the applicant. Family provision claims are governed by Part 4 of the Succession Act 1981 (QLD) and are subject to a 9-month time limit from the date of death. Probate disputes and family provision claims may be brought in the alternative — that is, a party may challenge the validity of a will but also argue that if the will is found valid, further provision should be made. The two types of claim involve different legal tests, evidence, and costs considerations.

The duration of a probate dispute in the QLD Supreme Court varies significantly depending on the complexity of the issues, the number of parties, the volume of evidence, and whether the matter settles at mediation or proceeds to trial. As a general guide: (1) from filing a Notice of Intention to Oppose or an Originating Application to a first directions hearing typically takes 4–8 weeks; (2) from the commencement of proceedings to mediation is typically 3–6 months; (3) if the matter does not settle at mediation and proceeds to trial, the total time from commencement to final judgment is typically 12–18 months, though more complex matters may take longer; and (4) any appeal to the Court of Appeal may add a further 6–12 months. The Probate List judge will set a timetable tailored to the specific matter and will actively case-manage the dispute to ensure it proceeds efficiently. Parties can assist by identifying the real issues in dispute early and narrowing the scope of the contest.

The costs of a probate dispute in QLD are determined by the Supreme Court in the exercise of its discretion. Unlike ordinary litigation where costs follow the event, probate costs are governed by special principles. Where the testator caused the litigation — for example, by making a will in ambiguous circumstances or by failing to have their capacity assessed — the Court may order costs to be paid out of the estate, meaning the estate bears the costs of all parties. Where the testator is not at fault, the ordinary rule that costs follow the event may apply, and an unsuccessful challenger may be ordered to pay the successful party's costs — potentially on an indemnity basis if the challenge was unreasonable. Where a party had reasonable grounds to investigate the will's validity — even if the challenge is ultimately unsuccessful — the Court may order that party's costs be paid from the estate or that each party bear their own costs. The Court also takes into account offers of settlement. A party who unreasonably refuses a favourable settlement offer and achieves a worse result at trial may face adverse costs consequences. Because costs are highly discretionary and fact-specific, early legal advice about costs exposure is essential.

Yes, it is possible to challenge a will after probate has been granted in QLD, but it is more difficult than bringing a challenge before the grant. Once probate has been granted, you cannot file a Notice of Intention to Oppose — that opportunity is lost. Instead, you must commence proceedings to revoke the grant of probate. This requires you to show not only that the will is invalid, but also that the grant of probate should be set aside. The Court will consider factors including: the strength of the grounds for challenging the will, the reasons for the delay, whether estate assets have been distributed, and the prejudice to third parties (including purchasers of estate property) if the grant is revoked. If estate assets have been distributed to beneficiaries, recovering them may require separate tracing proceedings. For these reasons, it is always preferable to act before probate is granted. If probate has already been granted, seek legal advice urgently — the longer you wait, the more difficult the challenge becomes.

In QLD, probate may be granted in two forms. Common form probate is the standard procedure for uncontested applications. It is an administrative process handled by a registrar of the Supreme Court. The application is made on affidavit evidence without a court hearing. It is simpler, faster, and less expensive than solemn form. Once granted, common form probate may be revoked if a later challenge succeeds. Solemn form probate is required where the will is contested — that is, where a Notice of Intention to Oppose has been filed or where the validity of the will is in issue. It involves a full hearing before a judge, with oral evidence and cross-examination. A grant in solemn form is conclusive as to the validity of the will and can only be set aside in very limited circumstances (such as fraud). The filing of a Notice of Intention to Oppose converts a common form application into a matter that must proceed in solemn form. The Probate List judge determines whether a grant may be made in common form or whether solemn form proceedings are required.

Disclaimer: This page provides general information about probate disputes in Queensland. It does not constitute legal advice. The Succession Act 1981 (QLD), the Uniform Civil Procedure Rules 1999 (QLD), the Criminal Code 1899 (QLD), and associated legislation are complex, and outcomes depend on the specific facts and evidence of each case. Probate disputes involve significant costs risks. You should obtain legal advice specific to your circumstances before taking any steps. Last reviewed: June 2026. Jurisdiction: Queensland, Australia.