Contesting a Will vs. Challenging the Validity of a Will in Australia: What’s the Difference?

Losing someone is hard enough. Then you get a copy of the will, and something just doesn’t feel right. Maybe you were left out completely. Or the will seems totally different from what your loved one always said they wanted.

Your first thought might be, “I should contest this will.” Many people think that way.

But here’s what most people don’t realise: in Australia, the phrase “contesting a will” covers two separate legal actions. They have different goals, different processes, and wildly different outcomes. Mixing them up can cost you time and energy you don’t need to lose.

So, let’s clear that up right now. In this guide, we’ll walk you through the critical difference between:

• Challenging a will’s validity (arguing the document itself isn’t legal), and
• Making a family provision claim (arguing a legal will doesn’t provide enough for you).

Knowing the difference is the first step to getting the right help.

The Core Difference: Two Main Questions

So, how do you make sense of all this? It comes down to two clear questions.

The first question is: “Is this will even legal?” That’s what we call challenging the will’s validity. You’re saying there’s something wrong with the document itself—maybe the person wasn’t of sound mind when they signed it, or maybe someone pressured them to change it.

The second question is: “The will is legal, but is it fair to me?” That’s a family provision claim. In this case, you accept the will is valid, but you argue it doesn’t leave you enough, especially if you depended on the person for support.

Here’s the difference:

• Challenging validity means you want the whole will thrown out.
• A family provision claim means you want a share of what’s in the valid will.

Getting clear on which question you’re really asking is the first step, and it shapes everything that follows.

Part 1: Challenging the Validity of a Will

Let’s look at the first path: challenging the will’s validity.

In this case, you’re not just upset with what the will says. You’re saying the document itself is flawed and should be thrown out completely. If the court agrees, it treats the will as if it never existed.

So what happens then? The court usually turns to the person’s most recent valid will. If there isn’t one, the estate gets divided under state intestacy laws, which decide who inherits when no valid will exists.

But you can’t challenge a will without solid reasons. The court looks for clear grounds, such as:

• Lack of capacity: The person may not have understood what they were doing because of illness, dementia, or another condition that affected their judgment.
• Undue influence: Someone pressured or manipulated them into making changes they wouldn’t have made on their own.
• Fraud or forgery: The will was faked, or the person was tricked into signing a different document.
• Improper execution: The will wasn’t signed or witnessed according to the legal rules.

Who can challenge a will? Usually, it’s someone with a financial interest. That might be a beneficiary named in an earlier will or a family member who would inherit if no valid will existed.

Part 2: Contesting a Will (Family Provision Claim)

Now let’s look at the second path. This one works differently. Maybe you read the will and think, “Yes, this is real and valid, but it’s not fair to me.”

That’s called a family provision claim. You’re not saying the will is fake or illegal. You’re saying the will is valid, but it doesn’t give you enough. Maybe you were left out, or maybe what you got isn’t enough to live on.

So what do you want in this case? You’re asking the court to change the will slightly. The goal is for a judge to adjust the terms so you receive a fair share, or a bigger share, of the estate.

But you can’t make this claim just because you’re unhappy. You need to prove two things.

First, eligibility. Not everyone can apply. You need to fall into a legal category, such as:

• A spouse or de facto partner
• A child
• Someone financially dependent on the person who died

Second, need. You must show the court that the will doesn’t give you enough for proper living costs, education, or future needs. This usually means proving you relied on the person for support or that you’re struggling financially.

So who can actually do this? Only those that the law defines as eligible. Friends or distant relatives who feel left out usually can’t make a claim. The law focuses on close family members or dependents with a real financial connection.

Contesting a Will vs. Challenging the Validity of a Will: A Quick-Reference Table

• Category
• Challenging Validity
• Family Provision Claim

Core Question

• Is this will legally valid?
• Is this valid will fair to me?

The Goal

• Invalidate the entire will.
• Change the valid will to give a share or larger share.

Key Grounds

• Lack of capacity, undue influence, fraud, improper execution.
• Inadequate provision for an eligible person.

Who Can Act?

• Anyone with a financial interest (e.g., beneficiary in an earlier will, or next of kin).
• Only eligible persons (spouse, child, or financial dependent).

Can You Do Both? (And What Happens If You Do?)

What happens if your situation is more complicated? What if you’re not sure the will is valid and, at the same time, you believe it doesn’t provide enough for you?

Can you take both paths?

The short answer is yes. In some cases, it works as a two-step process.

Here’s how it usually goes. You might start by challenging the will’s validity. You argue the document itself isn’t legal. If the court rejects that and rules the will is valid, you can then move to a family provision claim. At that point, you accept the will is valid but argue its terms are unfair and don’t provide for you properly.

In some situations, people have grounds to pursue both claims at once. A lawyer may recommend running them side by side as alternative strategies. That way, if one fails, the other is still available.

This approach is complex. On one side, you argue the will should be thrown out. On the other hand, you argue that if it stands, it should still be changed to give you a fair share.

That’s why expert guidance matters from the start. A lawyer can decide which path fits your case, handle both claims if necessary, and make sure you meet the strict deadlines that apply.

Trying to manage this on your own is overwhelming. The smartest step you can take is to get advice early so you know exactly how to move forward.

Getting the Right Legal Advice is Non-Negotiable

Picking the wrong legal path can cost you time, money, and energy. Even worse, you could miss the strict deadlines for making a claim. Each type of case has its own time limits, and once they pass, you lose your chance to act.

A skilled lawyer does more than prepare paperwork. They take the time to understand your situation, review the evidence, and look closely at your connection to the person who passed away. Their role is to build the strongest case for you—or to be upfront if your case isn’t likely to succeed.

That’s exactly where Law Tram comes in. We make it easy to connect directly with a lawyer who specializes in will disputes. Instead of wasting time searching on your own, you can quickly find the right expert who knows how to handle your situation.

If you’re thinking about contesting a will, challenging its validity, or both, book your free and confidential consultation today.