Who can contest a will in Queensland, and on what grounds?
In Queensland, a spouse, a child (including a stepchild or adopted child) or certain dependants can ask the court for more from an estate through a family provision application. The...
In Queensland, a spouse, child or certain dependants can ask the court for more from an estate by filing a family provision application, generally within 9 months of the death. This guide sets out each step in order, and what an executor should do when a claim arrives.
Contesting a will in Queensland usually means asking the court for a bigger share of an estate. This is called a family provision application. Only a spouse, a child (including a stepchild or adopted child) or certain dependants can make one, and it generally has to be filed within 9 months of the death. This guide sets out the usual steps, and what an executor does when a claim arrives.
General information about Queensland law. Not legal advice.
There are two routes, and they work differently. A family provision application does not say the will is invalid. It says the will, or the rules that apply when there is no will, did not make adequate provision for the proper maintenance and support of the deceased’s spouse, child or dependant (section 41(1) of the Succession Act 1981 (Qld)). A validity challenge says the document should not be accepted as the person’s will at all.
A family provision claim can be made whether or not the person left a will (section 41(1) applies “whether testate or intestate”). Most of this guide covers family provision, so first check who is eligible to claim.
For a family provision claim, the usual steps are: check you are eligible, note the 6-month and 9-month points from the date of death, get a copy of the will, find out who the executor is, give the executor written notice, gather information, file the court application (generally within 9 months of the death), and try to settle, which may include mediation. If the claim does not settle, a judge decides. Each step is explained below, with the law that applies.
The table shows what happens when you contest a will. In it, “s” is a section of the Act and “r” is a rule of the Uniform Civil Procedure Rules 1999 (Qld) (the court rules).
| Step | What happens | When | Where the law says so |
|---|---|---|---|
| 1. Check you can claim | Confirm you are the deceased’s spouse, child or dependant | Straight away | Succession Act s 41(1), s 40 |
| 2. Note the dates | Work out the dates 6 months and 9 months after the death | Straight away | s 41(8), s 44(3) |
| 3. Get a copy of the will | Ask whoever holds the will to let you see it or give you a certified copy | Any time after the death | s 33Z |
| 4. Find the executor | Find out who the executor is and whether probate has been applied for | As early as possible | Court rules r 598, r 599; s 41(8) |
| 5. Give written notice | Send the executor a signed letter saying you intend to claim | Before 6 months after the death, to help stop the estate being paid out | s 44(3), s 44(4) |
| 6. Gather information | Collect details of the estate, your circumstances and your relationship with the deceased | Before talks start | The firm’s own checklist (not a legal rule) |
| 7. File the application | Start proceedings in court, with supporting evidence | Generally within 9 months after the death | s 41(8), s 5; District Court of Queensland Act 1967 s 68 |
| 8. Try to settle | Talks between the parties, and mediation if the court refers the dispute | Talks: any time. Mediation: once proceedings have started | Court rules r 319, r 320 |
| 9. Court decides | A judge decides whether to order more provision, and how much | Only if the claim does not settle | s 41(1), (1A), (2), (3) |
Only the deceased’s spouse (including a de facto partner), child (including a stepchild or adopted child) or dependant can apply (section 41(1)). A “dependant” must be a parent of the deceased, the parent of the deceased’s surviving child under 18, or a person under 18, who was wholly or substantially maintained or supported by the deceased when they died (section 40). See who is eligible to claim.
In Queensland, a family provision application generally has to be filed within 9 months of the death. The court can allow a late application but does not have to. Giving the executor written notice of your intended claim within 6 months of the death helps stop the estate being distributed before your claim is dealt with (sections 41(8) and 44(3)). Read about the 9 month time limit to contest a will.
Whoever holds the will must, if asked, let an entitled person inspect it or give them a certified copy, if they pay the reasonable cost (section 33Z(1)). Entitled persons include anyone mentioned in the will or named as a beneficiary in an earlier will, the will-maker’s spouse, parent, children or other descendants, and anyone who may apply for family provision. Revoked wills are covered too (section 33Z(4)). Read what to do if the executor will not show you the will.
A grant of probate is the Supreme Court’s order confirming the will and the executor’s authority. At least 14 days before filing, an executor (other than the Public Trustee) applying for a grant must give notice of intention to apply (rule 598(1)). The notice must be published in a publication approved by the Chief Justice (rule 599(2)), which Queensland Courts says is the Queensland Law Reporter. To find out whether probate has been applied for, ask the executor. You do not have to wait for probate: the court can hear a claim even if no grant has been made (section 41(8)).
See when probate is required in Queensland. If probate has already been granted, read about the 9 month time limit to contest a will.
The notice must be in writing and signed by you or your solicitor (section 44(4)). Under section 44(3), an executor with no notice of any claim is protected in properly paying out the estate from 6 months after the death. Once the executor has your notice, that protection starts only at 9 months, and it ends once they are told in writing that your application has started or are served with it. So the 6-month point is not a filing deadline.
Catton Roderick Lawyers asks people thinking about a claim for this information. Keep copies of documents that support it.
Proceedings must generally be started within 9 months after the death (section 41(8)), and under the Act “the court” is the Supreme Court (section 5). The District Court can also hear one, as long as any provision it orders is not more than $750,000 (District Court of Queensland Act 1967 (Qld) section 68(1)(b)(x) and (2)). The application needs supporting evidence, usually sworn statements called affidavits, so get legal advice before you file.
The parties can talk about settling at any time. Once proceedings have started, the court can refer the dispute to mediation, on a party’s application or when the proceeding is before it (rules 319(1) and 320). A mediator is an independent person who helps the parties look for an agreement, but does not decide the claim.
The judge decides whether the will made adequate provision for your proper maintenance and support and, if not, what to order (section 41(1)). For a dependant, the judge must also be satisfied that it is proper for some provision to be made (section 41(1A)). The court can attach conditions, order a lump sum or periodic payments, or refuse an order because of the applicant’s character or conduct (section 41(2)).
Thinking about making a claim? Call Catton Roderick Lawyers on 1300 673 792, or read how Catton Roderick Lawyers helps with estate claims.
The Act sets no timetable, apart from the time limit to file: generally within 9 months of the death (section 41(8)). After that, the time depends on the estate, how many people are involved, how quickly information is shared and whether the claim settles. Timeframes vary. We give you an estimate once we know the facts.
It depends on your circumstances, and no one can promise an outcome. The court decides whether the will made adequate provision for you and, if not, what to order (section 41(1)). Things to weigh up include your relationship with the person who died, your own needs, the size of the estate, other people’s claims on it, and the risk of paying costs if the claim does not succeed.
We do not quote a success rate for will contests, because each claim turns on its own facts and the court’s discretion (section 41(1)).
Under the Act, a claim can fail because:
Costs are for the court to decide. Generally they follow the event (broadly, the loser pays the winner’s costs) unless the court orders otherwise (court rules, rule 681(1)). Read what it costs to contest a will, and who pays.
Challenging a will in Queensland on validity grounds means asking the Supreme Court not to accept a document as the person’s will. It may arise where the will was not signed and witnessed properly, or there are doubts about the will-maker’s mental capacity or concerns about undue influence (pressure that overrode the will-maker’s own wishes). A person claiming an interest in the estate can file a caveat against a grant of probate (court rules, rule 624). A caveat lasts 6 months and can be renewed.
A will must be in writing, signed, and witnessed by 2 people present at the same time, although the court can accept a document that was not signed or witnessed properly if it is satisfied the person intended it to be their will (sections 10 and 18). Read on what grounds a will can be challenged.
Queensland Courts says that once a caveat is filed, the court will not issue the grant until the issue is resolved. If probate has already been granted, the court can revoke it (section 6(1)). The rules on capacity and undue influence come from court decisions, not the Act, so get advice on the evidence first, and read how Catton Roderick Lawyers helps with estate claims.
If you are the executor and receive written notice of an intended claim, do not pay out the estate in a way the claim could affect. Once you have notice, the protection in section 44(3) covers only a distribution made at least 9 months after the death, and not if you have been told in writing that the application has started or you have been served with it. Get legal advice for the estate early.
Defending a will contest starts with protecting the estate while the claim is dealt with. Your duty is to collect the estate and administer it according to law (section 52(1)(a)). If the court requires it, you must file a full inventory of the estate on oath and account for your administration (section 52(1)(b)). Keep clear records of money in and out. See an executor’s duties in Queensland.
The court needs accurate information about the estate, and the executor usually holds it. If you are also a beneficiary, you have two roles: administering the estate for everyone entitled to it, and your own interest in the result. Get advice early on keeping them apart.
A person who could claim may tell you in writing that they consent to a distribution, or do not intend to make a claim that would affect it. If they have full legal capacity, they cannot then sue you over a distribution you make properly (section 44(2)). Get advice on how a settlement is recorded, especially if anyone involved is under 18 or lacks capacity.
Costs are in the court’s discretion (rule 681(1)), and the court may also weigh the rule 700A matters listed in the first FAQ below. Ask early whether your own costs can be paid from the estate, and see what it costs to contest a will, and who pays.
If you are a beneficiary and think the executor is acting unfairly, read what beneficiaries can do when an executor acts unfairly. If you are making a will and are worried about a future claim, talk to us about your will.
If you are an executor and have received notice of a claim, you can call Catton Roderick Lawyers on 1300 673 792 to talk about the estate’s position.
The court decides who pays the legal costs. Generally costs follow the event, unless the court orders otherwise (court rules, rule 681). In family provision cases the court can also consider the value of the estate, unmeritorious issues and any settlement offers (rule 700A). Ask about costs before you start, and read what it costs to contest a will, and who pays.
You can give the executor notice yourself. It must be in writing and signed by you or your solicitor (section 44(4)). Court applications have to follow the court rules and need evidence. Because of the time limit and the risk of a costs order, it is sensible to get advice before you file.
Unless the court directs otherwise, the payment comes rateably (in proportion) from the whole estate, so each share bears part of it (section 41(3)). The court can also order that part of the estate does not bear the payment (section 41(4)).
No. The 9-month limit runs from the date of death to the date proceedings are started in court (section 41(8)). Talks or letters do not change it. The court can allow a late application, but does not have to. If a claim has not settled as the 9-month point gets close, filing the application keeps it within the time limit. Read about the 9 month time limit to contest a will.
If you are thinking about contesting a will, or you are an executor facing a claim, you can talk to Catton Roderick Lawyers about your situation. Call 1300 673 792 or email info@cattonroderick.com.au. Our offices are at Unit 3, 9 East Street, Caboolture, and First Floor, Cominos Arcade, 133 Redcliffe Parade, Redcliffe. We also see clients in Birtinya (Sunshine Coast) and Brisbane by appointment.
Estate claims help in Caboolture, Redcliffe, the Sunshine Coast (Birtinya, by appointment) and Brisbane (by appointment).
You can also send us an enquiry, or read how Catton Roderick Lawyers helps with estate claims.
This page is general information about Queensland law as at September 2026. It is not legal advice about your situation. Time limits apply, so please get advice about your own circumstances.
Last reviewed: 27 September 2026
In Queensland, a spouse, a child (including a stepchild or adopted child) or certain dependants can ask the court for more from an estate through a family provision application. The...
In Queensland, you generally have 9 months from the death to file a family provision application in court (Succession Act 1981 (Qld) s 41(8)). The court can allow a late...
An executor must carry out the will, keep accurate accounts, act honestly and in good faith for the beneficiaries and distribute the estate as soon as may be. If not,...
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