Challenging a Will — Grounds, Evidence & Time Limits

Who this page is for

Family Members Excluded from a Will

You have been left out of a will — or received far less than expected — and you suspect the will does not reflect the deceased's true intentions. Perhaps a sibling, carer, or new partner exerted pressure, or the deceased was not mentally capable when they signed.

Beneficiaries Under Earlier Wills

You were a beneficiary under an earlier will, but a later document has dramatically changed the distribution. You need to understand whether the later will can be challenged and what evidence you need to gather.

Executors & Professionals

You are an executor, solicitor, or financial adviser who has identified irregularities in a will — unusual execution circumstances, late-surfacing documents, or concerns about the testator's capacity. You need to understand what steps to take and what duties you owe.

Family Members Supporting a Vulnerable Person

You are concerned that a relative or friend was manipulated into changing their will — perhaps by a carer, a new acquaintance, or a family member who isolated them from others. You want to understand whether the will can be challenged on the grounds of undue influence or lack of capacity.

Grounds for challenging a will

A will may be challenged on one or more of the following grounds. Each ground requires proof of specific elements. It is common for challenges to be brought on multiple grounds — for example, alleging both lack of capacity and undue influence in the alternative.

Undue Influence

The will-maker's free will was overborne by coercion. This is not mere persuasion, advice, or family pressure — it requires proof that the testator was not a free agent. The person alleging undue influence bears the onus of proof and must meet the Briginshaw standard: clear, cogent, and precise evidence commensurate with the seriousness of the allegation.

Lack of Testamentary Capacity

The will-maker did not have the mental capacity required to make a valid will at the time of execution. Capacity is assessed under the Banks v Goodfellow test (1870), which requires the testator to understand the nature of making a will, the extent of their property, and the claims of those who might expect to benefit — and to be free from any disorder of the mind that would poison their affections.

Fraud or Forgery

The will is not genuine — it was forged, altered after execution, or procured by fraudulent misrepresentation. This is the most serious allegation and requires strong evidence, including forensic document examination, handwriting analysis, and testimony from witnesses and the drafting solicitor.

Suspicious Circumstances

Under the principle from Wintle v Nye (and later affirmed in cases such as McKinnon v Voigt), where circumstances surrounding the preparation and execution of a will are such that the court's suspicion is aroused, the evidential burden shifts to the propounder of the will to prove that the testator knew and approved its contents. Suspicious circumstances may include the will being prepared by a major beneficiary, the testator being isolated from independent advice, or radical departures from longstanding testamentary intentions.

Want of Knowledge and Approval

The testator did not know or approve the contents of the will. This is distinct from capacity — a person may have capacity but not understand what a particular document says because, for example, it was not read to them, they did not have it explained, or it was presented for signature in misleading circumstances. The propounder of the will must generally prove knowledge and approval where the circumstances are suspicious.

Informal or Late-Surfacing Documents

Documents that do not meet the formal requirements for a valid will — but which a party seeks to have admitted to probate as an informal will — require careful scrutiny. Under s 8 of the Succession Act 2006 (NSW) and s 18 of the Succession Act 1981 (QLD), the court has discretion to admit informal documents. However, the proponent must prove that the document was intended by the deceased to form their will. Late-surfacing documents, particularly those discovered after death by a beneficiary, attract heightened suspicion.

Does your situation fit? — A preliminary checklist

The following checklist is a guide only. Tick the statements that apply to your situation. The more boxes you tick, the more likely it is that grounds for challenge exist — but only a full legal assessment can determine whether a challenge has reasonable prospects of success.

The will was made when the deceased was very elderly, unwell, or on strong medication
The deceased had a dementia diagnosis, cognitive impairment, or a psychiatric condition at the relevant time
The will was changed suddenly, without explanation, after years of consistent estate planning
A person who previously received little or nothing now receives the bulk of the estate
The main beneficiary arranged the solicitor appointment or was present when instructions were given
The deceased was isolated from family, friends, or long-standing advisors around the time the will was made
The signature on the will does not look like the deceased's known signature
Earlier wills have disappeared or cannot be located
The will was made in hospital, a nursing home, or shortly before death
Someone who was not a family member or long-standing friend suddenly became the primary decision-maker
The will contains provisions the deceased would never have agreed to, based on their known values and relationships
A later document has appeared that no one knew about before death
The witnesses to the will are the beneficiaries themselves or close associates of the main beneficiary
The deceased was dependent on the main beneficiary for daily care, transport, or access to the outside world

⚠ If you have ticked several of these boxes

You should seek legal advice promptly. The presence of multiple red flags does not guarantee a successful challenge, but it does indicate that the circumstances warrant thorough investigation. Evidence — particularly medical records and solicitor files — should be secured now. Request urgent advice →

Evidence that supports a will challenge

Challenging a will is an evidence-intensive process. The following categories of evidence are commonly relied upon:

Medical records: GP notes, specialist reports, hospital discharge summaries, cognitive assessments (MMSE or similar), medication records — particularly for the period around the will's execution
Solicitor file: The complete file of the solicitor who prepared the will — attendance notes, correspondence, file notes of instructions, and any notes about the testator's presentation and understanding
Earlier wills: All previous wills and codicils, showing the pattern of the deceased's testamentary intentions over time
Witness evidence: Statements from family members, friends, neighbours, carers, and treating doctors about the deceased's mental state, relationships, and expressed intentions
Witnesses to the will: The persons who witnessed the will's execution — what did they observe about the testator's condition and behaviour?
Financial records: Bank statements, transaction histories, and property records showing the extent of the deceased's assets at the time the will was made
Correspondence: Letters, emails, and text messages between the deceased and the main beneficiary, or between the deceased and excluded family members
Timeline: A detailed chronology of key events — changes in health, changes in relationships, will executions, hospitalisations, and significant transactions

Time sensitivity — act without delay

There is no fixed limitation period for challenging a will on the grounds of validity — unlike family provision claims, which must generally be brought within 12 months of the date of death. However, this does not mean you can delay. Several practical and legal considerations make early action essential:

Probate may be granted — once probate is granted, the executor can distribute the estate. Recovering distributed assets is difficult and sometimes impossible.
Evidence degrades — witnesses' memories fade, medical records may be harder to obtain, and documents can be lost or destroyed.
A caveat should be lodged — a caveat prevents a grant of probate from being made without notice to you. If you suspect a challenge is warranted, a caveat should be lodged immediately.
Delay weakens your position — even where no limitation period applies, the court may refuse relief if you have delayed unreasonably, particularly if the estate has been distributed or third-party rights have intervened.
Costs risk — early assessment of prospects avoids the risk of incurring substantial costs in a challenge that is unlikely to succeed.

NSW vs QLD — Key differences in challenging a will

Challenging a will under NSW law

Governing legislation: Succession Act 2006 (NSW) — the principal Act governing wills, probate, and family provision in NSW. Challenges to validity are heard in the Supreme Court Equity Division — Probate List
Formal requirements — s 6: The will must be in writing, signed by the testator (or by another person in the testator's presence and at their direction), with two witnesses present at the same time who attest and sign the will. Failure to meet these requirements means the will is not formally valid — however, the court may dispense with formalities under s 8
Dispensing power — s 8: The court may admit an informal document as a will if satisfied that the deceased intended it to form their will, even if it does not meet the formal requirements of s 6. This power extends to electronic documents, notes, and unsigned documents — but the proponent must prove the deceased's intention on the balance of probabilities
Probate application window: While there is no strict limitation period, probate should generally be applied for within 6 months of the date of death. Delay beyond this period requires explanation in the probate affidavit. A delayed application can itself be a red flag warranting investigation
Caveat procedure: Governed by Part 78 of the Supreme Court Rules 1970 (NSW). A caveat prevents a grant of probate from being made without notice to the caveator. The caveator must have standing — generally as a beneficiary under an earlier will, a person entitled on intestacy, or another interested party. The executor may warn the caveat, requiring the caveator to file an appearance and commence proceedings within a specified timeframe
Costs — the probate exception: Where the testator's own conduct or the circumstances surrounding the will caused the litigation, the court may order that costs be paid from the estate rather than by the unsuccessful party. This is the "probate exception" to the usual rule that costs follow the event. It is a significant factor in NSW and frequently influences settlement of will challenges
NCAT jurisdiction: The NSW Civil and Administrative Tribunal has limited jurisdiction over estate matters. Most will validity challenges must be brought in the Supreme Court Equity Division. However, NCAT can review the conduct of attorneys under enduring powers of attorney — and where will validity issues overlap with POA abuse, NCAT orders may provide supporting evidence
Criminal consequences: Crimes Act 1900 (NSW) — forgery (s 253), making false documents (s 254), using false documents (s 255), and perjury (s 327). Making a false statement in a probate affidavit may constitute perjury, carrying up to 10 years imprisonment

Challenging a will under Queensland law

Governing legislation: Succession Act 1981 (QLD) — the principal Act for wills, probate, and family provision in Queensland. Will validity challenges are heard in the Supreme Court of Queensland
Unique s 10(2) requirement: The testator's signature must be placed in a particular position relative to the attestation clause — specifically, at the foot or end of the will. This is a stricter positional requirement than NSW. A will that does not comply may raise questions about its execution, though the court can still admit it under the s 18 dispensing power
Dispensing power — s 18: The court may admit an informal document as a will if satisfied that the deceased intended the document to form their will. The threshold is similar to NSW but interpreted more strictly in some respects — the court requires clear evidence of the deceased's intention that the specific document should operate as their will
Lost will presumption — s 24(2): Where a will was last traced to the testator's possession and cannot be found at death, there is a statutory presumption that the testator destroyed it with the intention of revoking it. This is significant where someone claims a later will existed but was destroyed by another person. The presumption can be rebutted, but the evidentiary burden is on the person asserting the will was not destroyed by the testator
Notice of Intention to Oppose: The QLD equivalent of a NSW caveat. Filed under the Uniform Civil Procedure Rules 1999 (Qld) Chapter 15, it must state the grounds of objection. Unlike a NSW caveat, grounds must be specified at the time of filing. The executor may challenge the notice, requiring the objector to commence proceedings
Criminal penalties for will forgery — s 488: The Criminal Code 1899 (Qld) makes forging a will, codicil, or other testamentary instrument — or uttering (presenting) a forged will knowing it to be forged — an offence carrying up to 14 years imprisonment. This is one of the most serious criminal penalties for estate-related fraud in Australia and applies to both the person who forges the document and the person who presents it to the court
QCAT jurisdiction: The Queensland Civil and Administrative Tribunal has jurisdiction over enduring power of attorney matters under the Powers of Attorney Act 1998 (QLD). While QCAT cannot determine will validity, it can review the conduct of attorneys — and findings of attorney misconduct may provide supporting evidence in a will challenge. The Public Guardian (Qld) may also investigate where capacity or protection issues arise
Mediation preference: The Supreme Court of Queensland has a strong preference for mediation before trial in estate disputes. In many cases, the court will order the parties to attend mediation before the matter proceeds to a hearing. This reflects the recognition that family disputes over wills are better resolved by agreement than by adversarial litigation

Common mistakes people make when challenging a will

Confronting the person you suspect before seeking legal advice. Alerting the suspected influencer or the executor to your concerns may prompt them to accelerate the probate process, destroy evidence, or transfer assets before protective action can be taken. Get legal advice first — do not tip your hand.
Assuming unfairness alone is enough to challenge a will. Australian succession law does not recognise "unfairness" as a ground for challenge. You must establish one of the recognised legal grounds — undue influence, lack of capacity, fraud, suspicious circumstances, or want of knowledge and approval. A will that makes unequal provision among children, for example, is not automatically invalid. If your concern is about inadequate provision rather than validity, a family provision claim may be the appropriate remedy — but strict time limits apply.
Waiting too long to act. While there is no fixed limitation period for challenging validity (unlike family provision claims, which must generally be brought within 12 months of death), delay is prejudicial. Once probate is granted and assets are distributed, recovery becomes exponentially more difficult. The court may also refuse relief if you have delayed unreasonably and third-party rights have intervened.
Assuming medical evidence of dementia or cognitive impairment is automatically decisive. A diagnosis of dementia does not automatically mean the testator lacked testamentary capacity. Capacity is assessed at the time of execution and is specific to the task of making a will. A person with mild cognitive impairment may still have testamentary capacity. Conversely, a person without a formal diagnosis may still lack capacity. What matters is the medical evidence from the period surrounding the will's execution — not a diagnosis made months or years earlier or later.
Overlooking the importance of the solicitor's file. The file of the solicitor who prepared the challenged will is often the single most important piece of evidence. It contains attendance notes, records of instructions, and observations about the testator's presentation and understanding. But solicitor files have retention periods — typically 7 years — after which they may be destroyed. Request the file immediately. Do not assume it will be available when you need it.
Assuming you need conclusive proof before seeking advice. You do not need to prove your case before consulting a lawyer. You need reasonable grounds for suspicion — a pattern of circumstances that warrants investigation. A specialist estate litigation lawyer can assess whether the indicators you have identified are sufficient to warrant formal investigation, advise what further evidence would be required, and help you decide whether to proceed.

What to do now — practical steps

Write down everything you know — now. Record every fact, conversation, date, and observation you recall about the will, the deceased's circumstances, and the people involved. Memory fades. Contemporaneous notes made while recollection is fresh are more persuasive than testimony reconstructed years later. Include: who was present when the will was discussed or signed, what the deceased said about their intentions, any changes in the deceased's mental state or behaviour, and any conduct by the person you suspect that raised concerns.
Gather what documents you can access without alerting the other side. Earlier wills in your possession, correspondence from the deceased, financial records, medical appointment cards — anything that helps build a picture of the deceased's intentions, capacity, and relationships. Do not request documents from third parties (such as the deceased's bank or doctor) without legal advice — this may alert the executor or the suspected influencer.
Check whether probate has been applied for or granted. In both NSW and Queensland, probate records are publicly searchable. If probate has not yet been granted, you may have a window to lodge a caveat (NSW) or Notice of Intention to Oppose (QLD) before the executor obtains the grant. If probate has already been granted, you need to move quickly — revocation proceedings are more complex and the position changes once assets start being distributed.
Contact a specialist estate litigation lawyer for a confidential assessment. Explain what you have observed and why you suspect the will may not be valid. The lawyer will assess whether the indicators you have identified are sufficient to warrant investigation, advise what evidence would be needed to establish each ground of challenge, and give you a candid assessment of the likely costs, timeframe, and prospects. A good lawyer will tell you if your case is weak — that is better than spending tens of thousands of dollars on a challenge that is unlikely to succeed.
If advised, lodge a caveat or Notice of Intention to Oppose immediately. If probate has not been granted and the lawyer assesses that there are reasonable grounds for challenge, a caveat (NSW) or Notice of Intention to Oppose (QLD) should be lodged without delay. This prevents probate from being granted while the challenge is investigated. The caveat or notice must be lodged by someone with standing — your lawyer will advise whether you meet this requirement.
Secure the solicitor's file and medical records. Once your lawyer is engaged, they can formally request the file of the solicitor who prepared the will, and the deceased's medical records from GPs, specialists, hospitals, and aged care facilities. These requests are typically made under court rules or freedom of information legislation. The earlier they are made, the less risk there is that documents will have been destroyed or become unavailable.

Assess your will challenge — confidential review

Challenging a will is a serious step with significant emotional and financial consequences. We can assess your grounds, identify the evidence required, and give you a candid assessment of prospects before you commit to litigation.

Book a Case Assessment Lodge a Caveat Urgently NSW Will Challenge Guide QLD Will Challenge Guide

Related services and resources

Defending a Will

If you are an executor or beneficiary facing a challenge to a valid will, this page explains how to defend it — the evidence that strengthens a defence, procedural steps, and the costs risks involved.

Probate Fraud

If the executor has obtained probate through dishonesty — false affidavits, concealed wills, or forged documents — this page explains the remedies, including revocation of the grant and criminal consequences.

Undue Influence in Wills

Detailed guidance on proving undue influence — the most difficult but also the most consequential ground of challenge. What evidence the court requires and how the Briginshaw standard applies.

Suspected Estate Fraud Checklist

A practical checklist of warning signs, what to document, what evidence to gather, and what not to do. A starting point before seeking legal advice.

Frequently asked questions

No. Australian succession law does not recognise "unfairness" as a ground for challenging a will's validity. A will may be challenged only on specific legal grounds: lack of capacity, undue influence, fraud or forgery, suspicious circumstances, or want of knowledge and approval. If you believe you have been unfairly left out of a valid will, you may have a family provision claim under Chapter 3 of the Succession Act 2006 (NSW) or Part 4 of the Succession Act 1981 (QLD) — but this is a different type of claim and has strict time limits (generally 12 months from death).

A validity challenge says the will itself is not valid and should not be admitted to probate. If successful, an earlier valid will may be admitted, or the estate may pass under the intestacy rules. A family provision claim accepts the will is valid but says adequate provision has not been made for an eligible person (spouse, child, dependant, etc.) and asks the court to order provision from the estate. The two types of claim can be brought together, but they raise different legal questions and require different evidence.

It varies considerably. A straightforward challenge that resolves through negotiation may conclude within 3 to 6 months. A fully contested matter that proceeds to a hearing can take 12 to 24 months or longer, depending on the complexity of the evidence, the number of parties, and court availability. Urgent interlocutory applications (such as freezing orders or caveats) can often be obtained within days.

Costs in probate litigation are at the discretion of the court. In some cases, where the testator's conduct or the circumstances surrounding the will caused the litigation, costs may be ordered to be paid from the estate (the "probate exception"). In other cases, the unsuccessful party may be ordered to pay the successful party's costs. This is a complex area and you should discuss costs risks and protections with your lawyer before commencing proceedings.

You can still challenge the will, but the process is different and more difficult. Once probate is granted, you must apply to the Supreme Court to revoke the grant — rather than simply lodging a caveat to prevent it being granted in the first place. Revocation proceedings are more complex: the court must consider the interests of third parties who have acted in reliance on the grant, including beneficiaries who have received distributions and purchasers of estate property. This is why acting before probate is granted is so strongly emphasised — the window for simpler, more effective action is narrow. Check the probate registry now.

Disclaimer: This page provides general information about challenging the validity of a will in NSW and Queensland. It does not constitute legal advice. Every estate dispute is different and outcomes depend on the specific facts and evidence. You should obtain legal advice specific to your circumstances. Information on this page was last reviewed: June 2026. Jurisdiction: NSW and Queensland, Australia.

Challenging the Validity of a Will — Grounds, Evidence & Procedure