Contesting Probate vs Contesting a Will: What’s the Difference?

When a loved one passes away, disputes can sometimes arise over their estate. Two common legal actions in Queensland are contesting probate and contesting a will. While these terms are often used interchangeably, they refer to very different legal processes. Understanding the distinction is crucial if you are considering challenging an estate or seeking your rightful share.

What is Probate?

Probate is a legal process where the Supreme Court of Queensland formally recognises a will as valid and authorises the executor to administer the deceased’s estate. Probate is usually required before assets can be distributed, especially if the estate includes real property or significant financial assets.

Contesting Probate

Contesting probate means challenging the validity of the will itself or the right of a person to act as executor. Common grounds for contesting probate include:

• The will is not the last valid will of the deceased (for example, a later will exists or the will was revoked).
• The deceased lacked mental capacity at the time the will was made.
• The will was made under undue influence, fraud, or duress.
• The will was not properly executed (e.g., not signed or witnessed correctly).
• There are suspicious circumstances, such as alterations made after signing.

If you contest probate, you are essentially asking the court not to grant probate because the will is invalid or should not be recognised. This is a technical legal challenge and is usually resolved before any assets are distributed. If successful, the court may refuse probate, revoke an existing grant, or require a different will to be proved (QLD Law Handbook).

Contesting a Will (Family Provision Application)

Contesting a will in Queensland most commonly refers to making a family provision application. This is not about whether the will is valid, but whether it makes adequate provision for certain eligible people (such as spouses, children, or dependants). Even if the will is valid, the law recognises that some people may have a right to a greater share of the estate.

You may contest a will if:

• You have been left out of the will entirely.
• You believe you have not been adequately provided for, given your relationship or financial needs.

To contest a will in this way, you must be an eligible person (spouse, child, or dependant) and act within strict time limits: you must notify the executor within six months of death and file your application within nine months (QLD Law Handbook, ORG Law).

Key Differences at a Glance

• Contesting Probate is about whether the will is legally valid or the executor is entitled to act. It focuses on the circumstances of the will’s creation and execution.
• Contesting a Will (Family Provision Application) is about whether the will provides adequately for certain people. It does not challenge the will’s validity, but seeks a fairer distribution of the estate.

Common Scenarios

• Example 1: You believe the deceased was pressured into changing their will, or did not have capacity. You may contest probate to prevent the will from being accepted by the court.
• Example 2: You are a child or spouse who has been left out or inadequately provided for. You may contest the will to seek a greater share, even if the will is valid.

How We Can Help

At BJH Law, our experienced wills and estates lawyers on the Sunshine Coast can guide you through both processes:

• Challenging Probate: We can help you gather evidence, lodge a caveat, and represent you in court if you believe the will is invalid.
• Contesting a Will: We can assess your eligibility, advise on your prospects, and represent you in negotiations or court to seek a fair provision.

Frequently Asked Questions

Who can contest probate?
Anyone with an interest in the estate (such as a beneficiary under a previous will or someone who would inherit if there was no will) can contest probate if they have grounds to believe the will is invalid.

Who can contest a will?
Only certain people—spouses, children (including stepchildren and adopted children), and dependants—can make a family provision application.

What are the time limits?
For contesting probate, you should act as soon as possible, ideally before probate is granted. For contesting a will, you must notify the executor within six months of death and file your application within nine months.

What if I’m unsure which applies to me?
Contact our team for a confidential, obligation-free consultation. We’ll help you understand your rights and the best way forward.