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Will Dispute & Estate Litigation Lawyers in Melbourne
We act in contested estates across Victoria: family provision claims, challenges to whether a will is valid, and disputes with or between executors. Our clients are executors and trustees, and beneficiaries and other claimants. Our estate work usually involves something substantial at stake, such as a family business, company shares, a trust, valuable property, or a blended family where the will has put people on opposite sides.
- Family provision time limit6 months from the grant
- Family provision claims heard inSupreme Court or County Court
- Our practiceCommercial, family and estate litigation
When the will is where the dispute starts
A will is meant to settle things. In a contested estate it does the opposite: it becomes the document everyone is arguing about. Someone has been left out, or left short. Someone doubts the will-maker understood what they were signing, or suspects they were pressured. Or the will itself is not in dispute, and the fight is with the executor over how slowly, or how fairly, the estate is being run.
We act for executors and trustees, and for beneficiaries and other claimants, whether they are bringing a claim or responding to one, under the Administration and Probate Act 1958 (Vic) and the Wills Act 1997 (Vic). On either side the aim is the same: an early, honest read of the merits and the costs, and a resolution that does not consume the estate it is about.
Who leads this work
Penny LaGreca, Partner | Principal Solicitor, leads our estate litigation.
Sarah LaGreca, Managing Solicitor, works with her on contested estates.
Claims by a spouse, child or other eligible person left without adequate provision.
Acting for executors, trustees and beneficiaries when a claim is made on the estate.
Capacity, undue influence, and wills that were never properly signed.
Testamentary capacityFor beneficiaries or the executor: accounts, delay, commission, and removing an executor or administrator.
Estate administrationSuperannuation is usually dealt with under the fund's rules, not the will.
Superannuation disputesWhere the estate holds shares in a family company and control is contested.
Shareholder disputesA claim for proper maintenance, not a fair share
Part IV of the Administration and Probate Act allows the court to order that provision be made out of an estate for the proper maintenance and support of an eligible person (s 91(1)). It applies whether the deceased left a will, died without one, or both: the question is whether the distribution fails to make adequate provision for the claimant (s 91(2)(d)). Claims are heard in the Supreme Court or the County Court of Victoria (s 90).
It is not a claim for equality, and it is not a way to rewrite a will someone thinks is unfair. Before making an order the court must be satisfied that the deceased had a moral duty to provide for the claimant, and that the estate fails to make adequate provision for them (s 91(2)). Any order must not exceed what is necessary for the claimant's proper maintenance and support (s 91(5)(a)).
In setting the amount for an adult child, the court must take into account how far the claimant can provide for their own maintenance and support by reasonable means (s 91(4)(c)). For a grandchild, a member of the household and some others, dependency on the deceased is a threshold, and any provision must be proportionate to it (s 91(2)(b), s 91(5)(b)). Knowing which category a claimant falls into is the first step in valuing the claim.
Who is an eligible person
- A spouse or domestic partner at the date of death
- A child or stepchild who was under 18, a full-time student aged 18 to 25, or living with a disability
- An adult child or stepchild
- A person who believed the deceased was their parent and was treated as their child for a substantial period
- A former spouse or domestic partner who could have taken Family Law Act proceedings and was prevented from taking or finishing them by the death
- A registered caring partner*
- A grandchild*
- The spouse or partner of a child of the deceased, if that child dies within one year of the deceased*
- A member of the deceased's household*
* For these claimants the court must also be satisfied that they were wholly or partly dependent on the deceased for their proper maintenance and support (s 91(2)(b)). Categories summarised from s 90.
How a family provision claim is decided
The court must have regard to the will, to any evidence of the deceased's reasons for it, and to any other evidence of their intentions towards the claimant (s 91A(1)). It may then weigh the criteria listed in s 91A(2). In practice, three groups of them decide most claims.
The will and the reasons
A letter or statement explaining why someone was left out is evidence the court must consider, and it may accept evidence of the deceased's reasons whether or not it is in writing (s 91A(1)(b), s 94(c)). The reasons are weighed alongside everything else, so how they were recorded, and whether they were accurate, both matter.
Needs, resources and the estate
The size and nature of the estate and its liabilities, and the financial resources, earning capacity and needs of the claimant, the other eligible persons and the beneficiaries, now and for the foreseeable future (s 91A(2)(c), (d)). Every claimant is weighed against the others with a call on the same estate, so the strength of a claim is always relative.
Contribution and conduct
Contributions to building up the estate, or to the welfare of the deceased or their family, that were not paid for, benefits the deceased gave during their life, and the character and conduct of the claimant or any other person are all matters the court may consider (s 91A(2)(g), (h), (k)). A claimant's unpaid work over many years in a family business is the kind of contribution this captures.
In a substantial estate one question comes before all of these: what the estate actually is. An order is made out of the estate of the deceased (s 91(1)). Superannuation, assets held in a family trust and shares held through a company can each sit partly or wholly outside the estate, depending on the fund rules, the trust deed or the company's constitution. Mapping what is inside the estate, and what is not, is where the work on a high-value matter begins.
When the question is whether the will is valid at all
A family provision claim accepts the will and asks the court to add to it. A validity challenge says the document should not be admitted to probate as the deceased's will. If a will fails, an earlier valid will usually governs, or, if there is none, the estate passes under the intestacy rules in Part IA of the Administration and Probate Act.
Capacity
The will-maker must have understood what a will is and does, broadly what they owned, and who might expect to benefit, without a disorder of mind affecting their choices. A diagnosis such as dementia does not answer the question on its own. The medical and practical evidence from around the time the will was signed does.
Testamentary capacityUndue influence
Persuasion and advice are allowed. Coercion is not: a will made because the will-maker's own judgement was overborne is not truly their will. These claims turn on evidence about who arranged the will, who was present, and who benefits from it. They are hard to prove, so they need careful assessment before they are run.
Formalities and informal wills
A will is normally in writing, signed, and witnessed by two people present at the same time (Wills Act s 7). A document that misses those requirements can still be admitted if the Supreme Court is satisfied the person intended it to be their will (s 9), and a will that fails to carry out the will-maker's instructions can be rectified (s 31). Marriage and divorce can also change what an existing will does (ss 13, 14).
Wills and estate planningTwo time limits worth knowing now
A family provision claim must be made within 6 months after the grant (s 99(1)). The court can extend time, even after it has expired, but only if the extension is sought before the estate is finally distributed, and an extension does not undo distributions already made (s 99(2) to (4)). An application to rectify a will runs on a 6 month clock from the grant of probate as well (Wills Act s 31(2)).
A written notice of an intended claim, signed by the claimant or their lawyer, lapses 3 months after the executor receives it unless an application has been made to the court, and it cannot be renewed (s 99A(4)). Once 6 months have passed since the grant, an executor who properly distributes without notice that an application has been made is protected from action (s 99A(3)). A letter alone does not hold an estate in place for long.
Validity challenges do not run on the same 6 month clock, but they are far easier to raise before a grant is made than after it. Any person may lodge a caveat against the making of a grant (s 58), which is often the first formal step when there is real doubt about a will.
An early read on the claim, from either side
Initial consultations are confidential. Whether you are considering a claim or responding to one, we will tell you plainly how strong it is, what it is likely to cost, and what has to happen first.
When the dispute is with the executor
An executor holds the estate for the beneficiaries, and the court supervises how they do it. Most executor disputes are about information, delay or money. We act for beneficiaries raising those issues, and for executors and trustees who need to protect themselves while a dispute runs.
Accounts and information
An executor can be required to exhibit in court, on oath or affirmation, a true inventory and account of the estate (s 28(1)). For a beneficiary who has been told little or nothing, that is often the step that moves an administration forward.
Removal and replacement
The court can remove an executor or administrator who refuses to act, is unfit to act or is incapable of acting, and appoint someone else in their place (s 34(1)). Conflict between co-executors, or between an executor and the beneficiaries, is often the background to these applications.
Commission, fees and timing
The court can reduce, or order repaid, an executor's commission or fees it considers excessive (s 65A). An executor is not bound to distribute before one year from the death (s 49), so after that the question is whether the delay has a proper reason.
Estate administrationFor executors facing a claim, the Act gives real protection, but only on its terms. An executor who properly distributes after 6 months from the grant, without notice that an application has been made, is protected from action (s 99A(3)). And once a potential claimant has given written consent to a distribution, or written confirmation that they will not apply, they cannot sue the executor over a distribution properly made after it (s 99A(2)). Outside those protections, an executor who distributes and then meets a successful claim can be personally exposed, which is why the timing of a distribution is a legal decision, not an administrative one.
Settled by agreement where possible, run properly where not
Get the documents and the deadline
We establish the grant date and the time limit, obtain the will and any earlier wills, and work out what is in the estate and what sits outside it. People named in the will or as beneficiaries in an earlier will, a spouse or domestic partner, parents and children, and those entitled on intestacy can inspect and copy it at their own expense (Wills Act s 50).
Build the evidence early
Family provision claims are decided on financial evidence and on the history of the relationship. Validity challenges are decided on medical records and on what happened when the will was made. Both are better assembled before a mediation than after it.
Mediate with a real view of trial
Parties must use reasonable endeavours to resolve a dispute by agreement, including by mediation where appropriate (Civil Procedure Act 2010 s 22), and the court can refer a proceeding to mediation without the parties' consent (s 66). In the Supreme Court, what is said at a court-referred mediation is generally not admissible at the hearing (Supreme Court Act 1986 s 24A).
Costs are the risk that most needs managing. Costs in the Supreme Court, including in the administration of estates, are in the court's discretion (Supreme Court Act 1986 s 24(1)), so it is unsafe to assume the estate will pay everyone's costs whatever happens. Parties must also use reasonable endeavours to keep costs reasonable and proportionate to what is at stake (Civil Procedure Act 2010 s 24). We give a view on cost and risk at the start, and keep it current as the matter moves.
Questions about contesting, or defending, an estate
Last reviewed October 2026. Statutory references are to the Administration and Probate Act 1958 (Vic) version 130 (22 October 2025), the Wills Act 1997 (Vic) version 036 (26 April 2021), the Civil Procedure Act 2010 (Vic) version 022 (30 September 2026) and the Supreme Court Act 1986 (Vic) version 113 (15 April 2026). This page is general information, not legal advice.
Contesting an estate, or defending one.
If you have been left out of a will, doubt that a will is valid, or are an executor or trustee facing a claim, the first weeks matter. Arrange a confidential consultation and we will give you a clear read on where you stand and what the time limits mean for you.
Planning ahead instead? A carefully drafted will reduces the risk of a dispute later. Our estate planning page covers wills and probate.
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