What a fight over a will could take out of the estate

Only an eligible person, and each state's own Act sets the list. A spouse and a child of the person who died can claim everywhere, and so can a de facto partner living with them at the date of death. Beyond that it varies: New South Wales also allows former spouses, and grandchildren and household members who were dependent; Victoria also allows stepchildren and registered caring partners; Queensland is one of the narrowest, at spouse, child or dependant. Being on the list only opens the door. The court then asks whether the will left that person without enough to live on and get ahead in life.

It depends on your state, and the shortest is 3 months from the grant in Tasmania. New South Wales allows 12 months from the date of death. Queensland wants written notice within 6 months of the death and the application filed within 9 months of the date of death. Victoria, South Australia, Western Australia and the ACT allow 6 months from the grant, and the Northern Territory allows 12 months from the grant. What catches people is what the clock runs from: probate is often granted months after a death, so six months from probate and six months from the death are very different amounts of time.

Practitioners publish $20,000 to $40,000 a side for a simple claim that settles early, and upwards of $100,000 a side for an average estate taken to a hearing, and the estate usually carries both sides. No Australian court publishes a scale, so the report prices costs as a likely band and says so on the page: roughly 1% to 8% of the estate where it settles and 8% to 20% of the estate where it runs to a contested hearing. The one thing a court has published is a power rather than a figure: where the net distributable estate is under $1,000,000, the Supreme Court of New South Wales may cap what a party recovers (Practice Note SC Eq 7, paragraph 40).

In New South Wales it can. The notional estate rules in the Succession Act 2006 let a court treat property that never formed part of the estate as though it had been there all along. That includes a house that passed to the survivor, superannuation paid straight to a nominated person, or a gift made in the three years before death to keep money away from a claim. No other state or territory has anything like it, so everywhere else, what passes outside the will is outside the claim.

In the one national study, most did. White, Tilse, Wilson, Rosenman, Purser and Coe, Estate Contestation in Australia: An Empirical Study of a Year of Case Law (2015) 38(3) UNSW Law Journal 880, reviewed every publicly available Australian succession judgment over twelve months. It found that about 74% of the family provision claims in it resulted in some change to the distribution, rising to about 88% for estates between $1m and $3m. 63% of the claims were brought by children of the deceased and 23% by partners or former partners. Those are findings about judgments, the minority of matters that did not settle, and they are not a prediction about any particular claim. Nothing on this site will give you a percentage chance of success, because nobody can.

Yes. Estrangement is not a bar to a claim anywhere in Australia. It is one factor among many, and courts care more about why the relationship broke down than about how long the silence lasted. A long, unexplained absence can reduce the moral claim and the size of an order, and it matters more on a small estate than a large one, because every dollar ordered comes visibly out of somebody else.

Usually the estate, on both sides. In most court cases the loser pays, but family provision claims do not follow that rule in the ordinary way, so the money that pays for the fight is the money being fought over. Courts can still order an unsuccessful claimant to pay costs in some cases. In New South Wales, where the estate is under $1,000,000, the Supreme Court may cap what a party recovers.

Yes, but only with the court's permission, and it is never automatic. Every Australian Act lets a court allow a late claim. Courts look at how long the delay was, why it happened, whether the estate has already been paid out, and whether the beneficiaries would be treated unfairly. Once an estate has been paid out, a claim is much harder, and in several states (including Victoria, South Australia and Tasmania) a late claim cannot be allowed at all once the estate has been fully paid out.

It depends on the state. Queensland, Victoria and Tasmania treat a stepchild as a child. South Australia, Western Australia, the Northern Territory and the ACT allow a stepchild to claim only on conditions, such as having been supported by the person who died. New South Wales does not list stepchildren at all, although one may still qualify as a dependent member of the household.

It is a written agreement in which everyone with an interest in an estate agrees to divide it differently from the will. It can settle a will dispute without going to court, for a drafting fee rather than a litigation bill. It only works if everybody affected signs and has the legal capacity to do so, and it cannot bind an eligible person who does not sign.

Yes. Australia has testamentary freedom, which means you can leave your estate to whoever you like. What you cannot do is stop an eligible person applying to a court after you die, and a child is eligible in every state. So leaving a child out exposes the estate to a claim, and to the legal costs that usually come out of the estate on both sides.

No. This is an information service. It applies the published succession laws to the figures you enter and shows what they produce, with every working visible. It ranks the ways a claim can end on one stated measure, what reaches the will's beneficiaries, and it does not recommend one, does not predict what a court would do, and does not tell you whether to bring or defend a claim. For a live dispute, a solicitor can advise you, and the report ends with the questions to put to one.