When a loved one passes away and you believe their will doesn’t reflect their true intentions or fails to adequately provide for you, the decision to contest a will can feel overwhelming. Traditional litigation is expensive, time-consuming, and often destroys family relationships at a time when you’re already grieving. However, there’s a better alternative: contesting a will with mediation offers Australian families a faster, more affordable, and less adversarial path to resolving inheritance disputes.
Mediation provides a confidential, structured environment where all parties can voice their concerns, explore the validity of the will, and work toward mutually acceptable solutions without the emotional and financial devastation of courtroom battles. By bringing together family members, executors, and other stakeholders with a trained mediator, you can achieve outcomes that preserve relationships, reduce costs by up to 80%, and reach resolution in weeks rather than years. This comprehensive guide explores everything you need to know about contesting a will with mediation in Australia, including when it’s appropriate, how the process works, and why it should be your first choice for will disputes.
Understanding What It Means to Contest a Will in Australia
Contesting a will involves challenging either the validity of the will itself or the adequacy of provision made for eligible family members. In Australia, there are several grounds on which a will can be contested:
Lack of Testamentary Capacity: The deceased wasn’t of sound mind when making the will. Under Australian law, the will-maker must understand the nature of making a will, know the extent of their property, comprehend who might reasonably expect to benefit from their estate, and be free from any mental disorder that influences their decisions.
Undue Influence or Coercion: Someone pressured, manipulated, or forced the deceased to make or change their will in ways that don’t reflect their true wishes. This might involve taking advantage of the deceased’s vulnerability, illness, or dependence.
Fraud or Forgery: The will was forged, the deceased’s signature was faked, or the deceased was deceived about what they were signing.
Failure to Comply with Legal Formalities: Each state and territory has specific requirements for valid wills, typically requiring the will to be in writing, signed by the will-maker, and witnessed by two independent adults. Failure to meet these requirements may invalidate the will.
Inadequate Provision (Family Provision Claims): Even if a will is valid, eligible family members can contest it if they believe they haven’t been adequately provided for. Succession legislation in each Australian state and territory (such as the Succession Act 2006 in NSW, the Succession Act 1981 in Queensland, or the Administration and Probate Act 1958 in Victoria) allows certain people—typically spouses, children, and sometimes dependents or former partners—to apply for a greater share of the estate.
Contesting a will through traditional litigation means filing court proceedings, potentially in the Supreme Court of your state or territory, engaging lawyers, gathering evidence, attending hearings, and ultimately having a judge decide the outcome. This process is adversarial by nature, pitting family members against each other in a public forum, and can cost anywhere from $50,000 to over $200,000 depending on complexity.
Contesting a will with mediation offers a fundamentally different approach—one that’s collaborative rather than adversarial, private rather than public, and focused on finding mutually acceptable solutions rather than winner-takes-all outcomes.
Why Choose Mediation When Contesting a Will
Contesting a will with mediation provides numerous advantages over traditional court proceedings, making it the preferred first option for most inheritance disputes:
Dramatic Cost Savings: Litigation costs for contesting a will can easily exceed $100,000 when you factor in solicitor fees, barrister fees, court costs, and expert witness fees for medical or handwriting experts. These costs are typically paid from the estate, meaning less inheritance for everyone. Contesting a will with mediation typically costs between $3,000 and $10,000 for the complete process, preserving the estate’s value for beneficiaries.
Speed and Efficiency: Court proceedings for contested wills commonly take 18 months to 3 years to reach final resolution, sometimes longer if appeals are involved. Contesting a will with mediation can achieve resolution in a matter of weeks or a few months, with many disputes settled in one or two full-day mediation sessions. This speed is crucial for families who need closure and want to move forward with their lives.
Preserving Family Relationships: Perhaps the most important benefit of contesting a will with mediation is preserving family bonds. Litigation creates an adversarial environment where family members become opponents, often saying things in court that permanently damage relationships. Mediation facilitates respectful dialogue, helps family members understand each other’s perspectives, and focuses on collaborative problem-solving rather than conflict escalation.
Complete Confidentiality: Court proceedings are public record. When you contest a will through litigation, sensitive family matters, financial details, and private conflicts become accessible to anyone, including media. Contesting a will with mediation ensures complete confidentiality—everything discussed remains private, protecting your family’s reputation and dignity.
Flexibility in Solutions: Courts are limited in the orders they can make and must follow strict legal principles. Contesting a will with mediation allows for creative, flexible solutions tailored to your family’s unique circumstances. For example, rather than simply ordering a percentage redistribution, mediation might result in one beneficiary receiving the family home while others receive investment properties, or arrangements where specific sentimental items are distributed in ways that honour the deceased’s wishes while satisfying everyone involved.
Control Over Outcomes: In court, a stranger—the judge—makes final decisions about your family and your inheritance based on legal tests and precedents. When contesting a will with mediation, the family members themselves control the outcome with the mediator’s facilitation. This empowerment leads to agreements that better reflect the family’s values, circumstances, and the deceased’s likely intentions.
Higher Compliance Rates: Research consistently demonstrates that agreements reached through mediation have 80-90% compliance rates, compared to only 50-60% for court-imposed orders. When people participate in creating the solution rather than having it imposed on them, they’re far more likely to honour the agreement.
Reduced Emotional Trauma: Contesting a will through litigation is emotionally exhausting, requiring detailed evidence about family relationships, the deceased’s mental state, and potentially painful family history. Contesting a will with mediation, while still emotionally challenging, occurs in a supportive environment focused on healing and resolution rather than adversarial combat.
How Contesting a Will with Mediation Works
Understanding the mediation process helps demystify what can seem like an intimidating prospect. When contesting a will with mediation, you can expect the following stages:
Initial Consultation and Assessment: When you contact Mediations Australia about contesting a will with mediation, a specialist will discuss your situation, understand the grounds for contesting the will, identify all relevant parties, and explain how mediation can help. This assessment determines whether your situation is suitable for mediation and what preparation is needed.
Selecting an Experienced Mediator: Contesting a will with mediation requires a mediator with specialized knowledge of succession law, estate administration, and family dynamics. Mediations Australia provides accredited mediators who understand the legal framework for contesting wills in your state or territory, including testamentary capacity requirements, undue influence principles, and family provision legislation. The mediator is neutral and doesn’t take sides or make decisions—their role is to facilitate productive dialogue and help parties reach their own agreement.
Pre-Mediation Preparation: Before the formal mediation session, parties provide relevant documents including the contested will, any earlier wills, medical records if capacity is at issue, correspondence between family members, estate valuations, and any legal advice received. The mediator may conduct preliminary phone calls or meetings with each party to understand their concerns, positions, and desired outcomes. This preparation ensures the mediation session itself is focused and productive.
Opening the Mediation Session: When contesting a will with mediation, the process typically begins with all parties present (along with legal representatives if they choose to have them). The mediator explains the mediation process, establishes ground rules for respectful communication, confirms the confidential nature of proceedings, and ensures everyone understands their role. Each party then has an uninterrupted opportunity to present their perspective on why they’re contesting the will and what they hope to achieve.
Exploring Issues and Interests: The mediator facilitates discussion about the specific grounds for contesting the will. If the challenge involves testamentary capacity, parties might discuss the deceased’s mental state, medical evidence, and whether they understood what they were doing when making the will. If it’s about undue influence, the discussion explores the relationship dynamics and circumstances surrounding the will’s creation. For family provision claims, the focus turns to what constitutes adequate provision given each person’s needs, the size of the estate, and the deceased’s likely wishes.
Private Sessions (Caucuses): When contesting a will with mediation, the mediator often holds private sessions with each party. These confidential discussions allow people to express emotions freely, explore settlement options without feeling judged, discuss the strengths and weaknesses of their position, and consider compromises they might not want to propose in front of others. The mediator can reality-test proposals and help parties understand the risks and costs of continuing to contest the will through litigation if mediation doesn’t succeed.
Negotiation and Problem-Solving: Through joint sessions and private discussions, the mediator guides parties toward potential resolutions. This might involve acknowledging that while the will may be technically valid, it doesn’t adequately provide for certain family members, and negotiating a distribution that addresses those concerns. Or it might involve agreeing that doubts about capacity or undue influence warrant adjusting the distribution even without litigating those issues. The mediator helps parties move from positional bargaining (“I deserve 50%”) to interest-based negotiation (understanding what each person truly needs and why).
Reaching Agreement: When contesting a will with mediation successfully leads to agreement, the mediator helps document the terms clearly and comprehensively. This mediated agreement becomes the basis for resolving the estate dispute. All parties sign the agreement, acknowledging their commitment to the terms.
Formalising the Agreement: After successfully contesting a will with mediation, the agreement needs to be formalized legally. For family provision claims, parties can apply for consent orders from the court, making the mediated agreement legally enforceable. For other types of will contests, parties typically enter into a deed of family arrangement or settlement deed, which is a legally binding contract. Mediations Australia can refer you to experienced estate lawyers who can draft these documents and ensure your mediated agreement is properly implemented.
Common Scenarios for Contesting a Will with Mediation
Contesting a will with mediation is effective for numerous dispute scenarios:
Adult Children Excluded or Inadequately Provided For: Perhaps the most common situation involves adult children who receive nothing or very little from their parent’s estate. This might occur in blended families where a step-parent influenced the deceased to exclude children from an earlier relationship, or where estrangement led to disinheritance. Contesting a will with mediation allows these children to present evidence of their needs, their relationship with the deceased, and their expectation of provision, while other beneficiaries can explain the deceased’s reasoning and explore fair compromises.
Capacity Concerns: When family members have concerns that the deceased lacked mental capacity when making their will—perhaps due to dementia, mental illness, or medication effects—contesting a will with mediation allows these concerns to be addressed without the need for expensive medical expert reports and court battles. Parties can discuss the evidence of capacity issues and agree on a distribution that might reflect what the deceased would have wanted when they had full capacity.
Suspected Undue Influence: If a family member, caregiver, or new partner appears to have unduly influenced the deceased to change their will, contesting a will with mediation provides a forum to address these suspicions directly. The suspected influencer can explain their relationship and the circumstances, while concerned family members can express their evidence and concerns. Rather than litigating these difficult allegations, parties can often agree on a distribution that addresses the concerns while avoiding the acrimony of a court battle.
Conflicts Between Spouses and Adult Children: Common in blended families, disputes often arise when a deceased parent leaves everything to their current spouse, with adult children from an earlier relationship receiving nothing or only receiving inheritance after the spouse’s death. Contesting a will with mediation allows both the surviving spouse (who may need financial security) and the adult children (who want to honour their parent’s memory and receive some inheritance) to find balanced solutions.
Sibling Disputes Over Unequal Distribution: When a will distributes assets unequally among siblings, those receiving less may feel hurt and believe the will doesn’t reflect their parent’s true wishes or that a favoured sibling influenced the deceased. Contesting a will with mediation allows siblings to discuss the reasoning behind the distribution, address emotional wounds, and potentially adjust the distribution in ways that feel fairer to everyone.
Executor Self-Dealing or Conflicts of Interest: When an executor who is also a beneficiary has influenced the deceased or benefited disproportionately, other family members may want to contest the will. Mediation provides a less adversarial way to address these concerns and negotiate fair outcomes.
When Mediation May Not Be Suitable for Contesting a Will
While contesting a will with mediation is effective in most situations, some circumstances may require alternative approaches:
Complex Legal Questions Requiring Precedent: If your will contest involves novel legal interpretations or questions of law that need court determination, litigation may be necessary to establish the legal position before mediation can resolve distribution issues.
Serious Criminal Allegations: When contesting a will involves allegations of criminal fraud, forgery, or potential prosecution, these matters typically need investigation and potentially police involvement before mediation can appropriately address the estate distribution.
Safety Concerns or Family Violence: If there’s a history of family violence, threats, or severe power imbalances that make it unsafe or inappropriate for parties to participate in mediation, contesting a will through legal representation and court proceedings may be necessary. The safety and wellbeing of all parties must be the priority.
Complete Absence of Good Faith: Mediation requires all parties to participate genuinely and consider compromise. If someone is determined to litigate regardless of the merits or is using mediation purely to delay proceedings or access information, contesting a will with mediation may not succeed, and court proceedings may be the only option.
Even in these situations, it’s worth noting that parties can attempt mediation at any stage of court proceedings. Many will contests that begin as litigation eventually settle through mediation once parties understand the costs, risks, and emotional toll of continuing to trial.
The Legal Framework Supporting Mediation for Contesting Wills
Contesting a will with mediation is not just a practical choice—it’s actively encouraged within Australia’s legal system. Courts increasingly require or strongly encourage parties to attempt mediation before proceeding to trial for estate disputes.
Supreme Courts in all Australian states and territories have case management procedures that promote alternative dispute resolution. When you file proceedings contesting a will, courts often order parties to attend mediation or at minimum encourage it as a cost-effective alternative. Judges recognize that estate disputes are particularly suitable for mediation given the family relationships involved and the emotional nature of inheritance conflicts.
Legislation such as the Civil Procedure Act 2005 (NSW) includes overarching purposes that require courts to facilitate the just, quick, and cheap resolution of disputes, which explicitly supports mediation as a primary dispute resolution method. Similar provisions exist in other jurisdictions.
When you successfully resolve a will contest through mediation, the agreement can be formalized through various legal mechanisms:
Consent Orders: For family provision claims, parties can apply to the court for consent orders approving the mediated settlement. These orders have the same legal force as if the court had determined the matter after a trial.
Deeds of Family Arrangement: These legally binding contracts between parties document the agreed distribution of the estate and release all parties from further claims. Once signed, they’re enforceable like any contract.
Settlements Documented in Court Proceedings: If litigation has already commenced, the mediated settlement can be documented through court-approved settlement terms, discontinuing the proceedings and binding all parties.
Taking the First Step: How to Begin Contesting a Will with Mediation
If you’re considering contesting a will and want to explore mediation as your first option, here’s how to begin:
Contact Mediations Australia: Reach out to discuss your situation with a mediation specialist experienced in estate disputes. Explain why you’re contesting the will and what you hope to achieve. The specialist will assess whether mediation is appropriate and explain the process in detail.
Gather Documentation: Collect all relevant documents including the will you’re contesting, any earlier wills, medical records if capacity is at issue, correspondence with the executor or other family members, estate valuations, and any legal advice you’ve received. This information helps the mediator prepare effectively.
Consider Legal Advice: While not required, you may wish to consult a lawyer experienced in contesting wills before mediation to understand your legal rights, the strength of your case, and what a court might order if you proceeded to litigation. This advice helps you make informed decisions during mediation. You can also have legal representation present during the mediation sessions.
Initiate Contact with Other Parties: All relevant parties need to agree to participate in mediation. Mediations Australia can assist with communicating the benefits of mediation to other family members, the executor, and other stakeholders, and facilitating their agreement to participate.
Approach with an Open Mind: Contesting a will with mediation works best when all parties participate genuinely, listen to each other’s perspectives, and remain open to compromise. The mediator will guide the process, but the outcome depends on everyone’s willingness to engage constructively and creatively.
Commit to Confidentiality: Remember that everything discussed in mediation remains confidential. This protection allows for honest, productive dialogue without fear that admissions or offers made during mediation can be used against you if mediation doesn’t succeed and litigation becomes necessary.
The Cost-Benefit Analysis: Mediation vs. Litigation When Contesting a Will
The financial comparison between contesting a will with mediation versus litigation is stark and compelling:
Mediation Costs: Contesting a will with mediation typically costs between $3,000 and $10,000, depending on complexity and the number of sessions required. This includes the mediator’s fees, preparation time, and the mediation sessions themselves. If you engage a lawyer to advise you or attend mediation with you, their fees would be additional but typically modest compared to litigation costs.
Litigation Costs: Contesting a will through court proceedings commonly costs $50,000 to $100,000 and can exceed $200,000 in complex cases. These costs include solicitor fees for preparing and filing documents, barrister fees for court appearances, expert witness fees (medical experts for capacity issues, handwriting experts for forgery allegations, property valuers), court filing fees, and potentially costs orders if you lose. These expenses are usually paid from the estate, reducing what all beneficiaries ultimately receive.
Time Investment: Contesting a will with mediation typically reaches resolution within 2-4 months from initial contact to signed agreement. Litigation takes 18 months to 3 years on average, sometimes longer with appeals.
Emotional Costs: While harder to quantify, the emotional toll of litigation is substantial. Court proceedings require detailed affidavits exposing private family matters, cross-examination that can feel like personal attacks, and public hearings where anyone can observe. Contesting a will with mediation occurs in a private, supportive environment focused on resolution rather than combat.
The mathematics are compelling: even if mediation only has a 70% success rate (it’s typically higher), the cost savings make it worth attempting before resorting to litigation. And if mediation doesn’t fully resolve all issues, it often narrows the disputes sufficiently that subsequent litigation, if necessary, is shorter and less expensive.
Success Stories: How Families Benefit from Contesting a Will with Mediation
While confidentiality prevents sharing specific details, the patterns of success from contesting a will with mediation are clear and consistent:
Families who approach mediation with open minds typically reach agreements that leave everyone feeling heard and respected, even if they don’t get everything they originally wanted. Adult children excluded from wills often receive meaningful provision that acknowledges their relationship with the deceased while recognizing the needs of surviving spouses. Siblings in conflict over unequal distributions frequently discover the reasoning behind their parent’s decisions and negotiate adjustments that feel fairer while preserving their relationships.
Executors facing challenges to their administration use mediation to explain their decisions, address concerns transparently, and sometimes agree to modifications that give beneficiaries more confidence in the process. Blended families navigate complex competing claims through mediation, finding creative solutions that provide for surviving spouses while ensuring children from earlier relationships receive appropriate inheritances.
The common thread is that contesting a will with mediation allows families to have difficult conversations in a structured, supportive environment where a skilled mediator helps them move past positions to understand underlying interests and needs. This process honors the deceased’s memory by preventing the family from destroying itself in court battles, which the deceased would rarely have wanted.
Conclusion: Choose Mediation First When Contesting a Will
Contesting a will is one of the most challenging decisions you’ll face, occurring during a time of grief and emotional vulnerability. The prospect of court battles, legal fees, and family conflict can feel overwhelming. However, you don’t have to choose the traditional litigation path with all its costs, delays, and emotional damage.
Contesting a will with mediation offers a better alternative—one that resolves disputes faster, cheaper, and with far less damage to family relationships. By bringing all parties together in a confidential, structured environment with an experienced mediator who understands both succession law and family dynamics, you can work toward solutions that honor your loved one’s memory while addressing everyone’s legitimate needs and concerns.
At Mediations Australia, we specialise in helping families navigate the complex, emotional process of contesting a will with mediation. Our accredited mediators have extensive experience with all types of will contests, from capacity and undue influence challenges to family provision claims and beneficiary disputes. We understand the legal frameworks governing succession in each Australian state and territory, and we’re committed to helping your family find resolution with dignity and respect.
Don’t let the contest of a will destroy your family relationships or consume your inheritance in legal fees. Contact Mediations Australia today to discuss how contesting a will with mediation can help you achieve a fair resolution efficiently, affordably, and with your family bonds intact. Your loved one would want you to find a peaceful resolution—mediation makes that possible.
Disclaimer: This article is for general information purposes only and is not a substitute for professional legal advice. Consult a qualified lawyer or mediator for personalised guidance.
