One of the questions that often comes up after someone passes away is whether the Will can be challenged.
In many cases, families expect that the Will is simply to be followed exactly as stated and the estate distributed accordingly. In practice, however, there are situations where an eligible person can apply to the court for a greater share of the estate.
This is a recognised part of the process in Australia. Even where no concerns have been raised, the possibility of a claim is something that needs to be considered early — particularly when decisions are being made about timing and distribution.
Can a Will be challenged?
Yes — in certain circumstances, a Will can be challenged.
This usually happens through what is known as a Family Provision Claim, where an eligible person asks the court for further provision from the estate.
Importantly, this does not mean the Will is invalid. Instead, the court has the ability to adjust how the estate is distributed if it considers that adequate provision has not been made.
Who can challenge a Will?
While the rules vary slightly across Australia, the people most commonly able to make a claim include:
– a spouse or de facto partner
– children (including adult children)
– in some cases, dependents or others with a close relationship
Whether a claim succeeds depends on a number of factors, including:
– the nature of the relationship
– the size and structure of the estate
– the financial position of the person making the claim
When can a claim be made?
There are strict time limits for bringing a claim. Notice of a claim must be given within six months of the date of death and the formal court application filed within nine months.
From a practical perspective, this creates a window of time where the estate cannot safely be finalised. Even if no one has indicated they intend to make a claim, the possibility remains until that period has passed.
Why this affects timing
This is one of the main reasons estates are not usually distributed straight away.
In practice, it often means:
– waiting before making final distributions
– keeping funds aside in case a claim arises
– taking a more cautious approach to major decisions
This can sometimes be surprising for families, particularly where the estate appears straightforward.
The risk of distributing too early
A key risk for executors is distributing assets before it is clear whether a claim may arise. This is why legal advice is commonly sought before any distribution is made.
If a claim is later brought and the estate no longer has sufficient funds, an executor may be personally liable for the shortfall, even where they have acted in good faith.
For this reason, timing is not just about efficiency — it is about ensuring the estate can be administered properly and responsibly.
What happens if someone does make a claim?
If a claim is made, the process may pause or change while it is resolved.
This can involve:
– providing information about the estate
– negotiating with the person making the claim
– attending mediation
– in some cases, court proceedings
Many claims are resolved through negotiation, but they can still affect both timing and overall costs.
When claims are more likely
In practice, claims are more likely to arise where there are:
– blended families
– children from different relationships
– unequal distributions
– differing expectations between beneficiaries
– significant assets
Even in well-organised families, claims can arise — often based on financial need or changing circumstances rather than conflict.
How estates are usually managed during this period
While the risk of a claim exists, the estate is generally managed in a way that keeps options open.
This typically includes:
– avoiding early or informal distributions
– keeping clear records of decisions
– retaining sufficient funds within the estate
– allowing time for the relevant period to pass
This approach helps ensure that the estate can be finalised properly, regardless of whether a claim is ultimately made.
Why many families seek guidance
While an executor has the authority to manage the estate, dealing with timing, risk and competing expectations can be challenging.
In practice, many families choose to have the process supported or managed so that:
– decisions are made with a clear understanding of the risks
– communication is handled objectively
– the process stays on track
– issues are addressed early, before they escalate
This is particularly the case in estates with more significant assets or more complex family arrangements.
Next steps for executors and families
While many estates proceed without issue, understanding the risk of a Will being challenged is an important part of managing an estate properly.
Being aware of how claims work — and how they affect timing and decision‑making — can help avoid unnecessary stress and reduce risk for executors.
If you would like to discuss your particular situation, our team would be pleased to assist.
Please contact our office or phone us on 07 3839 7555 to arrange a confidential discussion.
Further information
Estate Administration – Perspective Law
Right to Access a Will – Can I Obtain a Copy of a Will?
Estate Administration in Complex Family Situations