Few disputes carry the emotional weight of a contested will. The grief of losing someone you love is compounded by the shock of discovering that their estate plan does not reflect what you believed was fair, what was promised, or what you need to survive. Add siblings, step-parents, estranged children, or a second spouse into the mix, and the ingredients for a prolonged and bitter legal battle are in place before anyone has even spoken to a lawyer.
In Australia, contesting a will — formally known as making a family provision claim — is remarkably common. More than 80 per cent of contested estate matters that reach the Supreme Court are resolved through mediation rather than a judge’s ruling. That statistic is significant, because it means that for the vast majority of families, the courtroom is not where the outcome is decided. It is decided around a mediation table, often in a single day, at a fraction of the cost and emotional toll of a trial. Understanding how this process works — and when to consider mediation before formal proceedings are even filed — can save families tens of thousands of dollars and preserve relationships that litigation would almost certainly destroy.
What Does “Contesting a Will” Actually Mean?
In Australian law, contesting a will most commonly refers to a family provision claim. This is a legal application made to the Supreme Court of the relevant state or territory by a person who believes the deceased’s will does not make adequate provision for their proper maintenance, education, or advancement in life.
Family provision claims are not about overturning a will because you disagree with it. They are based on the legal principle that a person has a moral obligation to provide for certain people — typically close family members and dependants — and that this obligation persists even after death. Every Australian state and territory has legislation enabling these claims, though the specific rules, eligible categories, and time limits vary between jurisdictions.
Key Legislation by State
The principal legislation governing family provision claims in each jurisdiction includes the Succession Act 2006 (NSW), the Administration and Probate Act 1958 (Vic), the Succession Act 1981 (Qld), the Family Provision Act 1972 (WA), the Inheritance (Family Provision) Act 1972 (SA), the Testator’s Family Maintenance Act 1912 (Tas), the Family Provision Act 1970 (NT), and the Administration and Probate Act 1929 (ACT).
While the details differ, the core framework across all jurisdictions is consistent: an eligible person may apply to the court for provision from a deceased estate if they can demonstrate that the will — or the rules of intestacy, if there is no valid will — does not adequately provide for them.
Who Can Contest a Will?
Eligibility to make a family provision claim varies by state and territory, but the following categories are recognised in most jurisdictions:
Spouses and de facto partners at the time of the deceased’s death have an unconditional right to apply in every state and territory. Former spouses may also be eligible, particularly if they were receiving or entitled to receive maintenance.
Children of the deceased — including biological, adopted, and in some jurisdictions stepchildren — are eligible in all states and territories. In Queensland, stepchildren have explicit standing under section 40 of the Succession Act 1981, provided the deceased was married to or in a de facto relationship with the stepchild’s parent at the time of death.
Grandchildren may apply in several jurisdictions, typically where they were wholly or partly dependent on the deceased or were members of the deceased’s household. In NSW, grandchildren are listed as eligible persons under section 57 of the Succession Act 2006.
Other dependants and household members may also be eligible depending on the jurisdiction. In Victoria, the legislation is notably broader — any person who believes the deceased had a responsibility to provide for them may apply, making it the most open-ended eligibility framework in Australia.
Strict Time Limits Apply
One of the most critical aspects of contesting a will is the limitation period. In NSW, a family provision claim must be filed within 12 months of the date of death. This deadline is strictly enforced, and missing it typically means permanently losing the right to make a claim. In Victoria, the limitation period is six months from the date probate is granted. In Queensland, the period is nine months from the date of death, although for deaths before 1 November 2006 it is six months from probate.
Courts may grant extensions in exceptional circumstances, but applicants should never assume this will occur. The countdown begins from the date of death — not from when you learn the contents of the will or when probate is granted — in most jurisdictions. This makes seeking early legal advice essential.
The Problem with Litigation in Estate Disputes
Estate disputes that proceed to a full hearing in the Supreme Court are among the most expensive and emotionally destructive forms of civil litigation in Australia. The reasons are straightforward.
Costs erode the estate. Both the applicant’s costs and the executor’s costs of defending the claim are typically paid from the estate. This means that every dollar spent on legal fees is a dollar removed from the pool available to all beneficiaries. In contested estate proceedings, combined legal costs of $30,000 to $50,000 for a mediation phase and $100,000 or more for a full hearing are not unusual. For modest estates — those under $500,000 — this can consume a devastating proportion of the assets. NSW courts now have the power to cap costs in small estate matters under Practice Note SC EQ 07, reflecting the severity of this problem.
Delays compound the harm. After a mediation that does not settle, hearing dates may not be available for 12 to 18 months. During this period, the estate remains frozen, legal fees continue to accrue, and the emotional toll on all parties intensifies. What might have been a six-month process with mediation can stretch to three years or more with a full trial.
Relationships are destroyed. Estate disputes pit family members against each other in an adversarial forum. Affidavits are filed detailing personal grievances, financial circumstances, and the nature of each party’s relationship with the deceased. Cross-examination can be brutal. Many families that go through a contested estate hearing never speak to each other again. As one experienced succession practitioner has observed, litigation does not just divide an estate — it divides a family permanently.
How Mediation Works in Contested Estate Matters
Mediation is now a compulsory step in family provision claims in NSW, and courts in Victoria, Queensland, and other jurisdictions routinely refer contested estate matters to mediation before listing them for hearing. In NSW, section 98 of the Succession Act 2006 requires the court to refer family provision proceedings to mediation unless there are special reasons justifying a departure from this requirement.
The process typically unfolds as follows.
Before Court Proceedings
In many cases, it is possible to attempt mediation before any formal court proceedings are filed. This approach, sometimes called pre-litigation mediation, involves the claimant’s legal representative notifying the executor of the estate that a claim is being considered, providing a summary of the basis for the claim, and proposing mediation as a first step. If the executor and other affected beneficiaries agree, a private mediator can be engaged to facilitate negotiations.
Pre-litigation mediation has significant advantages. It avoids court filing fees, reduces legal costs substantially, and allows the parties to explore resolution before positions harden. It also keeps the dispute entirely confidential — once court proceedings are filed, the existence of the claim becomes a matter of public record. For families who want to resolve the matter privately and preserve relationships, early mediation is often the best option.
Court-Ordered Mediation
If court proceedings are filed, all family provision claims in NSW will be referred to mediation by the court, typically at the first directions hearing approximately 28 days after filing. The judge will set a timetable requiring the executor to file responsive affidavits and for all parties to prepare for mediation. The mediation is then scheduled, usually within a few months of the first directions hearing.
The mediation itself is facilitated by an accredited mediator — either a private mediator agreed upon by the parties or, for smaller estates, a judicial registrar at the court at no additional cost. All parties attend, typically with their legal representatives. The mediator does not make a decision or impose an outcome. Instead, they help the parties understand each other’s positions, assess the strengths and weaknesses of the claim, and negotiate a settlement that all parties can accept.
Mediations in contested estate matters usually take one full day, though complex multi-party disputes may require additional sessions. The cost of mediation — including the mediator’s day rate, which typically ranges from $2,500 to $7,000 depending on the complexity of the estate and the seniority of the mediator, plus venue hire — is shared equally between the parties unless otherwise agreed.
Why Mediation Succeeds in Estate Disputes
The settlement rate for estate mediations is remarkably high. Over 80 per cent of family provision claims that are referred to mediation in NSW are resolved without proceeding to a hearing. Similar rates are reported in Victoria and Queensland. There are several reasons why mediation is particularly effective in this context.
The Costs Equation Favours Settlement
Because both parties’ legal costs are typically borne by the estate, every party has a direct financial incentive to settle early. A settlement reached at mediation preserves more of the estate for distribution. Continuing to a full hearing means that a substantial portion of whatever the court ultimately awards — or whatever the beneficiaries retain — will have been consumed by legal fees. This economic reality motivates genuine engagement in mediation.
Flexible Outcomes
Courts making family provision orders are limited to ordering that a specified sum or proportion of the estate be paid to the applicant. Mediation, by contrast, allows the parties to craft creative solutions that a court cannot. These might include the transfer of specific assets — such as the family home or a particular item of sentimental value — structured payment arrangements over time, the establishment of a trust for a beneficiary with a disability, agreements about the timing of property sales to maximise value, or arrangements that honour the deceased’s intentions while also meeting the applicant’s needs.
Confidentiality
Estate disputes often involve deeply personal information about family relationships, financial circumstances, health conditions, and the deceased’s reasons for the distribution in their will. Mediation keeps all of this confidential. Court proceedings, by contrast, generate publicly accessible affidavits, transcripts, and judgments. For families concerned about privacy, mediation offers significant protection.
Preserving Relationships
Perhaps most importantly, mediation allows family members to have a facilitated conversation rather than an adversarial confrontation. The mediator can help parties understand each other’s perspective, acknowledge grief and loss, and find common ground. While not every family relationship can be repaired after an estate dispute, mediation gives families the best possible chance of maintaining some form of connection. For families with ongoing relationships — particularly where grandchildren are involved — this is an outcome of immeasurable value.
Preparing for Estate Mediation
Thorough preparation for mediation is essential to achieving the best possible outcome. The following steps will help you approach the process effectively.
Understand the estate. Before mediation, ensure you have a clear picture of the estate’s assets and liabilities. The executor is required to provide this information, and in court-ordered mediations, the court will typically direct the executor to file an inventory of the estate. Knowing the size of the estate is critical to assessing what a realistic outcome looks like.
Assess the strength of your claim. Not all family provision claims are equal. Courts consider a range of factors, including the nature of your relationship with the deceased, your financial position and needs, whether you have a disability, the size of the estate, any contributions you made to the estate or to the deceased’s welfare, the deceased’s reasons for the distribution in their will, and the competing claims of other eligible persons. In NSW, section 60(2) of the Succession Act 2006 lists 16 factors the court may consider. Understanding how these factors apply to your situation helps you negotiate from a position of informed realism.
Know what you want — and what you need. There is often a difference between what a person feels entitled to and what they genuinely need. Mediation works best when you have a clear sense of your priorities. Is your primary concern financial security? Is it about a specific asset with sentimental value? Is it about recognition and acknowledgment? Knowing your priorities allows you and your legal representative to negotiate strategically.
Consider who pays and cost implications. If the claim is likely to succeed, costs will generally be ordered from the estate. But if it fails, you may bear your own costs and potentially the estate’s costs of defending the claim. Understanding the cost risks informs your approach to settlement negotiations.
Approach the process in good faith. Mediation is not a rehearsal for trial. It is a genuine opportunity to resolve the dispute. Attending with a willingness to listen, to negotiate, and to consider reasonable proposals significantly increases the likelihood of reaching an agreement.
When Mediation May Not Be Appropriate
While mediation resolves the overwhelming majority of contested estate matters, it is not suitable in every circumstance. Mediation may not be appropriate where there are allegations of fraud, forgery, or undue influence in the making of the will — these are validity challenges that may require judicial determination. Similarly, where one party refuses to engage in good faith or where there is a significant power imbalance between the parties that cannot be adequately managed in a mediation setting, the matter may need to proceed to a hearing.
However, even in complex multi-party disputes involving blended families, multiple wills, or allegations of lack of testamentary capacity, experienced mediators regularly achieve settlements. The question is not whether mediation can work — in the vast majority of cases, it can — but whether all parties are willing to engage constructively in the process.
The Cost of Not Mediating
Consider the alternative. A family provision claim that proceeds to a full hearing in the Supreme Court will typically involve preparation of detailed affidavits by all parties, briefing a barrister, multiple directions hearings, a trial lasting one to five days depending on complexity, and the possibility of an appeal. Combined legal costs across all parties can easily exceed $150,000 to $200,000 for a contested hearing. For an estate worth $500,000, this means that 30 to 40 per cent of the assets could be consumed by legal fees alone — regardless of the outcome.
By contrast, a successful mediation — including pre-mediation legal preparation — might cost each party between $5,000 and $15,000, with the mediator’s fees shared between them. The difference is not marginal. It is the difference between a meaningful inheritance and an inheritance consumed by the cost of fighting over it. Understanding how long mediation takes compared with court proceedings makes the case even more compelling — most mediations conclude in a single day, while court proceedings stretch over months or years.
Taking the First Step
If you are considering contesting a will, or if you are an executor or beneficiary facing a family provision claim, the most important decision you can make is to explore mediation early. Whether you engage a private mediator before filing court proceedings or prepare thoroughly for court-ordered mediation, the evidence is clear: mediation resolves estate disputes faster, more affordably, and with far less damage to family relationships than litigation.
At Mediations Australia, our accredited mediators have extensive experience in estate dispute mediation across all Australian states and territories. We work with families navigating the most sensitive and emotionally charged disputes, and we achieve resolution in over 90 per cent of cases. If you are facing a contested estate matter, contact us today for a free, confidential consultation to discuss your options.
This article is for general information purposes only and does not constitute legal advice. Family provision claims involve complex state and territory-specific legislation with strict time limits. For personalised guidance regarding your specific situation, please consult a qualified legal professional or accredited mediator.
