When a loved one passes away, disputes about their estate can be both emotionally and legally complex. Some people feel they have been unfairly left out of a Will, while others question whether the document truly reflects the wishes of the deceased.

Many people use the expressions “contesting a Will“ and “challenging a Will” to mean the same thing. From a legal perspective, however, they usually refer to different concerns about a deceased estate and can lead to very different legal outcomes.

Understanding the distinction is important because pursuing the wrong type of claim can lead to unnecessary delays, costs, and uncertainty. If you have concerns about a deceased estate, identifying the nature of the issue is often the first step.

Why People Often Confuse The Two

Both contesting a Will and challenging a Will arise after a person’s death and involve concerns about a deceased estate. They may involve family members, beneficiaries, executors, or other interested parties, and in some cases can result in legal proceedings.

Because both processes deal with disputes about a Will, many people assume they are the same. The key distinction is simple:

Are you arguing that the Will is unfair, or are you arguing that the Will is not legally valid?

The answer will often determine the type of claim that may be available.

Contesting A Will: The Will Is Accepted As Valid

When a person seeks to contest a Will in Victoria, they generally accept that the Will is legally valid.

Instead, the concern is whether adequate provision has been made for an eligible person from the estate. This type of claim is commonly known as a Family Provision Claim (also called a Part IV claim).

A person may consider contesting a Will if they have been excluded from the estate, received significantly less than expected, or believe the provision made does not adequately reflect their circumstances.

The focus is generally on the individual’s financial position, relationship with the deceased, and personal circumstances.

Challenging a Will: The Validity Is In Question

A person who seeks to challenge a Will is generally questioning whether the document should be recognised as the deceased person’s valid Will. A validity challenge may involve issues such as lack of testamentary capacity, undue influence, fraud, improper execution, or whether the document was actually intended to operate as a Will. 

Concerns may arise about the circumstances surrounding the preparation or signing of the document, including:

• The deceased’s ability to understand the Will when it was made
• Whether improper pressure influenced decisions
• Whether the final document reflects decisions truly made by the deceased
• Compliance with legal requirements for creating a valid Will

In these matters, the focus is on the validity of the document itself rather than the claimant’s personal circumstances.

The Difference In Practical Terms

In simple terms, contesting a Will focuses on whether adequate provision has been made for an eligible person, while challenging a Will focuses on whether the document should be recognised as legally valid.

One claim asks whether further provision should be made from the estate. The other asks whether the Will should be accepted as the deceased person’s valid testamentary document.

Although both involve an estate dispute, the evidence required, legal arguments relied upon, and potential outcomes can differ significantly.

Situations Where Both Issues May Need Consideration

It is possible for concerns about validity and provision to arise at the same time.

For example, a person may question whether a Will should be recognised as valid while also believing they have not been adequately provided for under the Will.

Although these issues can exist within the same estate dispute, they involve different legal questions and are assessed using different evidence.

Understanding Your Position Before Taking Action

Estate disputes often arise during a period of grief and uncertainty. Taking action without understanding the nature of the issue leads you to focus on the wrong legal issue, which may divert attention from the evidence that matters most and may complicate the resolution of the estate dispute.

Whether your concerns relate to provision from an estate or the validity of a Will, obtaining advice early can help clarify the issues involved and identify what information may be relevant.

An experienced estate dispute lawyer Melbourne families trust can assess the circumstances and explain the options available.

Moving Forward With Confidence

Before taking formal steps, it is important to understand the nature of the estate dispute and the options that may be available.

While contesting a Will and challenging a Will both involve concerns about a deceased estate, they address different legal questions and require different approaches.

At Shan Lawyers, we assist clients with Will disputes, Family Provision Claims, estate litigation matters, and succession law issues across Melbourne and Victoria.

If concerns arise regarding a deceased estate, obtaining legal advice can help you understand your position and make informed decisions about the next steps.

About the Author

Thirumalai Selvi Shanmugam is the founder, Director, and Principal lawyer at Shan Lawyers and is a leading family law specialist in Australia whose expertise is often sought by organisations and the media.

Disclaimer

This article provides general information only and does not constitute legal advice. Family law matters are fact-specific, and available options depend on the circumstances of each case.

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