“Contesting a will” means two different things in Queensland, and the difference decides which deadline applies. One is an application for a share, or a larger share, of an estate that left someone without adequate provision. The other says the document is not a valid will.
Most people mean the first. It is governed by Succession Act 1981 (Qld) s 41 and carries a date that matters. The two numbers people repeat, six months and nine months, come from different sections doing different jobs.
The two things people mean by contesting a will
A family provision application accepts that the will is valid. It asks the court to order provision out of the estate for a person left without adequate provision for their proper maintenance and support. The power is in s 41(1) and it is discretionary: the court may order “such provision as the court thinks fit”.
A challenge to validity says the will should not be admitted to probate, or that a grant already made should be revoked. That is a separate jurisdiction, conferred by s 6. The two can run in the same estate but they are different claims on different evidence. Everything below deals with family provision unless it says otherwise.
Who can apply for family provision
The list is closed: only a spouse, child or dependant can apply under s 41(1). Being a friend, a paid carer or a sibling confers no standing by itself.
Spouse is defined in s 5AA(2): a husband or wife at the date of death, a civil partner, or a de facto partner who lived with the deceased on a genuine domestic basis for a continuous period of at least two years ending on the death. For family provision only, s 5AA(2)(c) reaches further, to a dependent former husband, wife or civil partner: someone divorced from the deceased, or whose civil partnership was terminated, who had not married or entered another civil partnership before the death and was receiving, or entitled to receive, maintenance from the deceased.
Child is defined in s 40 and includes a stepchild and an adopted child. Section 40A adds the qualification that matters in blended families: the stepchild relationship stops on divorce, on termination of a civil partnership, or on the ending of a de facto relationship. It does not stop merely because the stepchild’s own parent died first, provided that relationship subsisted when the parent died.
Dependant is the narrowest category. Under s 40 it covers only a parent of the deceased, the parent of a surviving child of the deceased under 18, or a person under 18, who was wholly or substantially maintained or supported by the deceased at the date of death otherwise than for full valuable consideration. Section 41(1A) adds a further test: the court must be satisfied it is proper that provision be made, having regard to the support being given, the need for it to continue, and the circumstances.
The two dates: six months and nine months
These dates sit in different sections and bind different people. Nine months is the applicant’s deadline. Six months is not a deadline at all: it is the point from which the personal representative can safely start distributing.
| Six months from death | Nine months from death | |
| Source | s 44(3)(a) | s 41(8) |
| Who it binds | The personal representative | The applicant |
| In practice | Get written notice in | File the application |
Section 44(3)(a) says no action lies against a personal representative who properly distributes not earlier than six months after the death and without notice of a family provision application or an intended one. Section 44(3)(b) extends that safe date to nine months where notice has been received, and the protection is lost once written notice arrives saying the application has been commenced, or a copy is served.
Notice is not a phone call. Section 44(4) requires it in writing, signed by the applicant or their solicitor, which is why the practical date in most estates is six months. The protection is also personal to the representative: unlike s 44(1), which covers a distribution made to support a spouse or dependent child, s 44(3) does not say an order cannot disturb it. In practice, assets can lawfully leave while an applicant is still thinking about it.
If the nine months has already passed
Section 41(8) is not absolute. No application shall be heard unless proceedings were instituted within nine months of the death, “unless the court otherwise directs”. The court can let a late application through, but must be asked. The practical difficulty compounds the legal one: by then the estate may already have been distributed under s 44, and provision is ordered out of the estate, so distribution can make effective relief much harder to obtain.
Two provisions soften the edges. Under s 41(6) an application filed for one person is deemed, on the question of limitation, to be an application for everyone who might apply, so a sibling’s timely filing can preserve the position. Under s 41(7) a personal representative, the public trustee or a litigation guardian can apply for a person under a legal incapacity, which the court may treat as made on their behalf to avoid the effect of limitation.
How a court decides a family provision application
Section 41(1) requires a two-stage process, set out by the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 and applied in Queensland in Hartley v Hartley [2022] QCA 96 at [7].
The first stage is the jurisdictional question: was the applicant left without adequate provision for their proper maintenance and support? The factors include the applicant’s financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and others with legitimate claims on the deceased’s bounty.
Only then does the court reach the second stage: what provision, if any, judged on the circumstances at the date of the order. The Court of Appeal put the limit plainly: the jurisdiction does not entitle the court to rewrite the will in accordance with its own ideas of fairness or justice.
Conduct, and whether a letter of explanation protects a will
Section 41(2)(c) lets the court refuse an order in favour of a person whose character or conduct disentitles them to it, or whose circumstances make refusal reasonable. Hartley settles where that question belongs: the trial judge had weighed disentitling conduct at the first stage, and at [16] the Court of Appeal held that was an error of principle, because s 41(2)(c) is in terms part of the second-stage enquiry.
Hartley also answers the question that arises whenever someone is deliberately left out. The will-maker had signed a statutory declaration the same day as her will, setting out why she was excluding one of her four sons; the trial judge treated it as going only to her reasons. At [15] the Court of Appeal held that was wrong: it had been admitted under Evidence Act 1977 (Qld) s 92, which allows a statement in a document to prove the facts it states where that Part’s conditions are met, so it was proof of the truth of its contents. What it could not do was oust the jurisdiction. Provision was ordered for the excluded son anyway, and the executor did not press an appeal, Hartley v Hartley [No 2] [2023] QCA 80 at [12] and [13].
Challenging whether the will is valid
This is the other claim, and it has no equivalent fixed deadline. Section 10 sets out how a will must be executed: in writing, signed by the will-maker or by someone else in their presence and at their direction, with the signature made or acknowledged before two or more witnesses present at the same time, at least two of whom must attest and sign the will in the will-maker’s presence. Section 18 then lets the court treat a document that purports to state the person’s testamentary intentions, but was not executed that way, as a will anyway, if satisfied they intended it to form their will. The other grounds usually argued, capacity and whether the will-maker knew and approved the contents, come from the general law rather than the Act.
The practical clock is the grant: unwinding a distributed estate is far harder than stopping one, and the step that stops it is a caveat. Under Uniform Civil Procedure Rules 1999 (Qld) rule 624 a person claiming an interest in an estate may file a caveat against a grant, or one requiring a will to be proved in solemn form; it takes effect on filing, lasts six months and can be renewed. Rule 625 gives the caveator eight days from the registrar’s notice to file a supporting notice, failing which the registrar may proceed as if none had been filed. Rule 626 lets the court set a caveat aside if the evidence does not show an interest in the estate, or a reasonable prospect of one, or does not raise doubt about whether the grant should be made.
Which court hears it, and who pays
Under District Court of Queensland Act 1967 (Qld) s 68(1)(b)(x) the District Court can hear a family provision application, so long as the provision resulting from its order does not exceed the monetary limit, which s 68(2) sets at $750,000 as at August 2026. The test is the size of the provision, not the size of the estate. Where the provision sought could exceed that limit, or the dispute is about the will’s validity, it belongs in the Supreme Court.
On costs, the assumption that the estate pays for everything is worth retiring. In Hartley v Hartley [No 2] the executor was ordered at [25] to pay the applicant’s costs of his failed appeal application, and refused any indemnity from the estate for those costs or his own.
Published 24 August 2026.
Where this leaves you
The dates run from the date of death, not from the day the will is read or probate is granted. For a spouse, child or dependant, the dates to work to are written notice inside six months and proceedings inside nine. For an executor, the same sections cut the other way.
Related reading
- Do you need probate in Queensland?
- How Fraser Lawyers helps with wills and estates
- Succession Act 1981 (Qld), current reprint
- Contact Fraser Lawyers
Need advice? The deadlines in an estate run from the date of death, and they are short. If this is your situation, contact Fraser Lawyers to understand your rights and where you stand, with no obligation. |
This article is general information only and is not legal advice. Queensland law and the figures referred to can change, and every situation turns on its own facts. Contact Fraser Lawyers for advice specific to your circumstances.
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