The death of a parent, sibling, or spouse is one of the most difficult experiences a family can face. When a dispute emerges over how an estate is to be distributed — or whether a will is valid at all — grief can quickly transform into something harder and colder: litigation.
Estate and inheritance disputes are on the rise in Australia. An ageing population, rising property values, blended families, and increasingly complex financial arrangements (including superannuation and self-managed super funds) are creating more contested estates than any previous generation has seen.
The cost of that conflict — financially, emotionally, and in terms of family relationships — is real and lasting. Courts take years. Legal fees can consume a significant portion of the estate being fought over. And by the time a matter reaches judgment, the family relationships it was fought over are often beyond repair.
Mediation offers a better way.
Types of Estate Disputes
Estate disputes in Australia typically fall into several categories:
Contested Wills
A will can be contested on the grounds that it was not validly executed, that the testator lacked testamentary capacity at the time it was made, that the testator was subject to undue influence, or that the document itself does not accurately reflect the testator’s intentions. These claims are governed by succession legislation in each state and territory.
Family Provision Claims
Every Australian state and territory has legislation allowing eligible persons to apply to a court for provision (or additional provision) from an estate if they have not been adequately provided for. The relevant legislation includes:
- Succession Act 2006 (NSW)
- Succession Act 1981 (QLD)
- Administration and Probate Act 1958 (VIC) and Wills Act 1997 (VIC)
- Inheritance (Family Provision) Act 1972 (SA)
- Family Provision Act 1972 (WA)
- Testator’s Family Maintenance Act 1912 (TAS)
- Family Provision Act 2004 (ACT)
- Administration and Probate Act 1969 (NT)
Eligible applicants generally include spouses, de facto partners, children (including adult children), and in some jurisdictions, other dependants. The court assesses what “adequate provision” looks like having regard to the applicant’s financial circumstances and the relationship with the deceased. Full text of relevant legislation is available at legislation.gov.au and through AustLII.
Superannuation Death Benefit Disputes
Superannuation does not automatically form part of a deceased’s estate. The trustee of the super fund has discretion to pay the death benefit to an eligible dependant or the estate, unless a binding death benefit nomination is in place. Where a nomination is absent, invalid, or disputed, conflicts between family members can be significant — particularly where the super balance is substantial.
Executor Disputes
Disputes can also arise over the conduct of an executor — allegations of delay, mismanagement of estate assets, failure to account, or self-dealing. These matters can be brought before the relevant state Supreme Court but are well-suited to mediation where the parties’ underlying interests are better served by resolution than by formal removal proceedings.
Family Provision Claims: A State-by-State Overview
Family provision claims are the most common form of estate litigation in Australia, and the law differs meaningfully across jurisdictions.
New South Wales
Under the Succession Act 2006 (NSW), eligible persons can apply for a family provision order from the estate of a deceased person. Eligibility extends broadly — including spouses, de facto partners, children, former spouses, and persons who were wholly or partly dependent on the deceased. The application must be made within 12 months of the date of death, though courts have discretion to extend this timeframe. The NSW Supreme Court has a well-established practice of referring family provision matters to mediation before they are set down for hearing. Many matters settle at mediation.
Queensland
The Succession Act 1981 (Qld) governs family provision claims in Queensland. Eligible applicants include the spouse, children, and dependants of the deceased. Claims must generally be made within nine months of the date of death. The Supreme Court of Queensland actively encourages mediation in estate matters.
Victoria
In Victoria, family provision claims are made under the Administration and Probate Act 1958 (Vic). Victoria has a broader eligibility framework than some other states — a stepchild or registered caring partner may also be eligible in some circumstances. Claims are heard in the Supreme Court of Victoria, which routinely refers contested estate matters to mediation.
South Australia, Western Australia, and Other States
Each remaining state and territory has its own legislative framework and time limits. The common thread is that family provision claims are expensive, emotionally draining, and often resolved through mediation before reaching trial — because both parties eventually recognise that the cost of litigating to judgment is rarely worth it.
The AustLII database is a useful resource for accessing the relevant legislation in each state and territory.
Superannuation Death Benefits: A Growing Source of Conflict
Superannuation is now one of the largest assets many Australians hold. For many families, the super death benefit is larger than the entire probate estate. Yet it is not governed by the same rules as estate distribution.
When a person dies, their superannuation does not automatically pass to their estate. The trustee of the superannuation fund has legal discretion to pay the death benefit to an eligible dependant (a spouse, child, or financial dependant) or to the legal personal representative of the estate — unless a valid binding death benefit nomination (BDBN) is in place.
Where a BDBN exists and is valid, the trustee must follow it. But BDBNs can be challenged on the grounds of:
- Failure to comply with the formal requirements (including witnessing requirements)
- Mental incapacity at the time of signing
- Fraud or undue influence
- The nomination having lapsed
Where there is no valid BDBN, the trustee exercises discretion — and that discretion can be challenged if beneficiaries believe it was exercised improperly. Disputes between family members about the proper recipient of a death benefit are increasingly common, particularly in blended family situations where the deceased had children from a prior relationship as well as a current spouse.
These disputes are heard by the Australian Financial Complaints Authority (AFCA) in the first instance, or by the courts. But they are also amenable to mediation — particularly where the dispute is about the distribution of a fixed pool of assets rather than a matter of legal principle.
Executor Disputes: When the Person in Charge Is Part of the Problem
The executor of an estate has significant legal responsibilities — to gather and protect assets, pay debts, and distribute the estate in accordance with the will. When an executor is also a beneficiary (which is common), conflicts of interest can arise.
Common executor disputes include:
- Delay in administration — beneficiaries becoming frustrated with slow progress and alleging the executor is mismanaging the process
- Failure to account — failure to provide clear accounts of assets, income, and expenses to beneficiaries
- Self-dealing — allegations that the executor has used estate assets for their own benefit, or has acquired estate property at below-market value
- Disagreements about asset sales — particularly where the estate includes a family home or business that some beneficiaries want retained and others want sold
The remedy for executor misconduct is an application to the relevant state Supreme Court for the executor to be removed and replaced. This is an expensive and adversarial process — and one that can often be avoided through mediation, where the executor and beneficiaries can reach agreement on timelines, information sharing, and distribution without needing a court order.
What Can and Cannot Be Mediated in an Estate Dispute?
Mediation is appropriate for most estate disputes, but there are some limitations.
Well-suited to mediation:
– Family provision claims — determining appropriate provision and its form (lump sum, right to reside, specific asset)
– Executor conduct disputes — agreeing on timelines, accounts, and distribution
– Disputes about the interpretation of will terms
– Superannuation death benefit disputes (once formal processes have been engaged)
– Disputes between beneficiaries about how assets should be distributed or liquidated
Less suitable for mediation:
– Challenges to the validity of a will on grounds of fraud or serious undue influence — these often require court intervention and may involve criminal conduct
– Disputes involving a party who lacks mental capacity to participate meaningfully
– Situations where urgent court orders are needed to protect estate assets from dissipation
Even in these more complex situations, mediation can play a role alongside, rather than instead of, legal proceedings — for example, in narrowing the issues for court after urgent protective orders have been obtained.
The Cost of Contesting a Will vs Mediation
The financial case for estate mediation is compelling. Consider the realistic costs:
| Pathway | Approximate Cost (indicative) | Timeframe |
|---|---|---|
| Mediation | $3,000–$10,000 (shared) | 1–2 sessions; weeks |
| Solicitor-negotiated settlement | $10,000–$30,000+ per party | Months |
| Family provision trial (Supreme Court) | $50,000–$200,000+ per party | 1–3 years |
These are indicative ranges only. Costs vary significantly depending on complexity, legal representation, and jurisdiction.
In estates where the disputed amount is less than $200,000, the cost of Supreme Court litigation can easily exceed the value of the claim. Even in larger estates, the financial and emotional cost of years of litigation must be weighed against the prospect of a mediated outcome that may be less than “full victory” but achieves certainty and resolution.
Legal aid is available in some circumstances — Legal Aid commissions in each state may be able to assist eligible applicants. For general information about costs, see our article on the costs of mediation and mediation — who pays?.
Why Litigation Is So Destructive in Estate Disputes
Estate litigation is qualitatively different from commercial litigation. The parties are family members. They may have decades of shared history, unresolved grievances, and deeply personal stakes. The legal system is not well-equipped to navigate this complexity — it can determine legal entitlements, but it cannot repair damaged relationships or honour the informal wishes of someone who has passed.
The Supreme Courts in most Australian states now actively encourage — and in some cases, require — that estate disputes be referred to mediation before being set down for trial. Many family provision matters settle at mediation, often on terms that the parties themselves design.
The Australian Government Attorney-General’s Department has recognised alternative dispute resolution as a priority for reducing the burden on the court system, particularly in family and estate matters.
For a broader view of why avoiding litigation is often the right call, see why going to court for your dispute is a mistake.
How Mediation Works for Estate Disputes
Estate mediation typically involves:
- Preparation — each party, usually assisted by their solicitor, prepares a brief summary of their position and key documents (the will, asset valuations, evidence of relationship, financial circumstances)
- Separate pre-mediation consultations — the mediator meets privately with each party before the joint session to understand their interests and concerns
- Joint session — the mediator facilitates a structured discussion; parties are encouraged to speak to their experiences, not just their legal positions
- Private caucuses — the mediator works between parties to test proposals and bridge gaps
- Settlement agreement — if resolved, a binding agreement is drafted, often to be formalised as consent orders or a deed of family arrangement
Importantly, family members who are not named in the will but have a genuine stake in the outcome can be included in the mediation. This is something the court process rarely accommodates.
You can read more about the estate dispute mediation process specifically, or explore our broader family mediation services.
Is Mediation Right for Your Estate Dispute?
Mediation is appropriate for most estate disputes, including contested will claims, family provision applications, superannuation death benefit disputes, and executor conduct disputes. It is less likely to be suitable where:
- There are allegations of serious fraud or elder abuse requiring immediate court intervention
- A party lacks legal capacity to participate meaningfully
- One party is unrepresented and there is a significant power imbalance that cannot be managed by the mediator
- Urgent court orders are needed to protect estate assets from dissipation
In those circumstances, it remains important to obtain legal advice promptly.
Practical Tips for Estate Mediation
Get legal advice first
While you do not need a lawyer present at mediation (though many parties choose to bring one), it is strongly recommended that you obtain independent legal advice before the session. Understanding your legal rights — including whether you have a viable family provision claim, what time limits apply, and what a court might realistically award — gives you a realistic basis for negotiation.
Many solicitors who practise in estate law are experienced in mediation and can help you prepare a position paper that clearly articulates your claim and the basis for it.
Gather financial information
Estate mediation is most productive when both parties have a clear picture of the estate’s assets and liabilities. Before the session, you should have access to:
- A copy of the will and any earlier wills
- A schedule of estate assets and their estimated values (including real property, investments, bank accounts, and personal property)
- Information about any superannuation and whether a binding death benefit nomination exists
- Details of the deceased’s financial position at the date of death, including any debts
If the executor has not provided this information, you may need to request it formally — and if it is not forthcoming, this itself may be grounds for a complaint or application to the court.
Think about what you actually need
Many family provision claims are driven by genuine financial need — a child who was financially dependent on the deceased, or who contributed to the care of the deceased in their final years, may have a real claim to provision. But some claims are driven more by hurt feelings, family grievances, or a sense of injustice about how the estate was structured.
In mediation, being clear about what you genuinely need — and why — opens up a wider range of possible outcomes. A court can only award money or specific assets. A mediated outcome might also include an apology, a recognition of contribution, a transfer of a specific item of sentimental value, or other non-financial elements that the court could never order.
Be ready to hear the other side’s perspective
Estate disputes are often the culmination of a lifetime of family dynamics. Mediation creates space for those dynamics to be acknowledged — not to relitigate the past, but to understand each other’s perspective well enough to reach a resolution both parties can accept. This is often where the real work of estate mediation happens.
For more information on how estate mediation works, see our dedicated estate dispute mediation page, or explore our broader family mediation services.
Take the First Step
Estate disputes don’t need to destroy what a person spent a lifetime building — including their family. Mediations Australia works with families navigating some of the most difficult conversations they’ll ever have.
Book a consultation to find out how mediation can help your family reach a resolution that honours everyone’s interests.
This article is general information only and does not constitute legal advice. Estate law in Australia is state and territory-based and the applicable legislation will depend on where the deceased was domiciled. Superannuation law is federal. You should seek independent legal advice from a qualified Australian solicitor in relation to any estate dispute.
