You want certainty. You want the estate plan locked down so that after you're gone, no one can tear it apart.
So you ask your solicitor: "Can we put in a clause that says anyone who challenges the will loses their inheritance?"
It sounds decisive. It sounds final. And yes, you can write it into the will.
But here's what you need to know: in Australia, that clause almost never does what people think it does.
A no-contest clause (sometimes called a forfeiture clause) may signal your intent. It may deter some beneficiaries from making noise. But it will not stop an eligible person from bringing a valid claim. And when someone does challenge the estate, the clause rarely survives.
If you want to reduce the risk of a dispute after you're gone, the real question is not whether to include the clause. The real question is whether your estate plan can stand up to the rights that Australian succession law gives certain people.
This article explains what no-contest clauses actually do, why they usually fail, and what works better if your goal is to protect the estate from a fight.
Key Takeaways
- No-contest clauses do not stop statutory family provision claims, eligible people retain the right to apply to court regardless of what the will says
- Forfeiture provisions may deter some beneficiaries but they cannot override succession legislation in any Australian state or territory
- There is a difference between challenging validity and making a provision claim, most disputes are provision claims, which are not blocked by a forfeiture clause
- Better strategies exist, clear reasons, updated estate planning documents, consistent structures, and where appropriate, binding releases reduce dispute risk far more effectively
- The practical position is uniform across Australia, NSW, Victoria, Queensland, WA, and other jurisdictions all treat no-contest clauses as unenforceable against statutory rights
- Get advice early, estate planning works when it addresses eligibility and expectations, not when it relies on a clause to scare people off
What Is a No-Contest Clause?
A no-contest clause is a provision in a will that says something like this:
"If any beneficiary challenges this will or brings a claim against the estate, they forfeit their entitlement."
The idea is simple. You give someone a gift in the will, but only if they stay quiet. If they make trouble, they get nothing.
In theory, the clause acts as a deterrent. In practice, it rarely works the way will-makers expect.
A no-contest clause is not a legal shield. It is a statement of intent that succession law usually overrides.
Why Do People Put Forfeiture Clauses in Wills?
The reasons are understandable.
You might be leaving someone out. You might be dividing assets unequally. You might have remarried and worry that children from a previous relationship will challenge the estate.
You want to make it clear: this is the plan, do not fight it.
A forfeiture clause feels like a line in the sand. It says, "I've made my decision. Accept it or lose what I've given you."
For some will-makers, that sense of control matters. They want the beneficiaries to know there are consequences for stirring up a dispute.
But control over the estate and control over who can bring a claim are two different things.
Why the Clause Usually Does Not Stop a Claim in Australia
Here's the problem.
Australian law gives certain people a statutory right to apply for provision from an estate. That right exists whether the will likes it or not.
The legislation differs slightly by state and territory, but the principle is the same. If you're an eligible person under the Succession Act (or the equivalent legislation where the estate is administered), you can apply to the court for provision. A clause in the will cannot take that right away.
The court decides whether adequate provision was made for your proper maintenance, education, or advancement in life. If the answer is no, the court can adjust the will.
A no-contest clause does not change the court's jurisdiction. It does not override the legislation.
This is why forfeiture clauses usually fail. The people most likely to challenge a will are the people with statutory standing to do so. And those people cannot be disinherited by a clause alone.
Think about it: if a simple sentence in a will could eliminate someone's right to claim, the legislation would be meaningless.
If you're concerned about a family provision claim, the clause won't stop it. The better move is to document your reasons, provide something reasonable, and ensure the structure of your estate reflects your intentions across all assets, not just the will.
The Difference Between Challenging a Will and Making a Family Provision Claim
This distinction matters.
Challenging a will usually means arguing that the will is not valid. Maybe it was forged. Maybe the will-maker lacked capacity. Maybe there was undue influence.
If the challenge succeeds, the will is set aside.
A family provision claim is different. The person bringing the claim accepts that the will is valid. They are not saying the will-maker lacked capacity or was coerced. They are saying the will does not make adequate provision for them, and they want the court to adjust it.
Most estate disputes in Australia are family provision claims, not validity challenges.
And this is where no-contest clauses fall apart. The clause might say, "If you challenge the will, you forfeit your gift." But a family provision claim is not treated as "challenging" the will in that narrow sense. It is an application under statute.
Courts have repeatedly held that forfeiture clauses do not bar family provision claims. The legislation prevails.
So if you put a no-contest clause in your will thinking it will stop your adult child, former spouse, or stepchild from applying for more, you are probably wrong.
A forfeiture clause may deter frivolous noise. It will not stop a serious claim from an eligible person with a genuine case.
Does the Answer Change by State?
No. The position is effectively the same across Australia.
Each state and territory has its own succession legislation:
- New South Wales: Succession Act 2006
- Victoria: Administration and Probate Act 1958
- Queensland: Succession Act 1981
- Western Australia: Family Provision Act 1972 and Inheritance (Family and Dependants Provision) Act 1972
- South Australia: Inheritance (Family Provision) Act 1972
- Tasmania: Testator's Family Maintenance Act 1912
- Australian Capital Territory: Family Provision Act 1969
- Northern Territory: Family Provision Act 1970
The wording differs. The eligibility criteria differ slightly. But the principle is consistent: statutory family provision rights override a private clause in the will.
Some practitioners argue that a no-contest clause might carry more weight if the beneficiary is not an eligible person under the relevant Act. If you have no statutory standing, and you're only a beneficiary because of the will-maker's generosity, then perhaps the clause can bite.
Maybe. But even then, the clause will not stop someone from testing their eligibility. And if they are eligible, the clause collapses.
The bottom line: do not assume the clause will work differently in Queensland than NSW or Victoria. It will not.
If your estate has assets in multiple states or you're worried about where a claim might be brought, get advice on the interplay of laws. But do not rely on a forfeiture clause to solve that problem.
What Forfeiture Clauses Can and Cannot Achieve in Practice
So if the clause does not stop a claim, what does it do?
Sometimes, not much. Sometimes, more than you'd think.
What a Forfeiture Clause Cannot Do
- Stop an eligible person from applying for family provision
- Override succession legislation
- Prevent a beneficiary from seeking legal advice on their rights
- Automatically disqualify someone who brings a claim
- Guarantee that the will is not varied by a court
What a Forfeiture Clause Might Still Do
- Signal the will-maker's strong intention that the distribution should stand
- Deter a beneficiary who is unsure whether they have a case
- Create a litigation risk for someone who might lose their existing gift if the claim fails
- Support the argument that the will-maker turned their mind to the possibility of a dispute and made their wishes clear
- Add weight to an affidavit of testamentary intention (though the clause alone is not enough)
The practical effect depends on context.
If you leave a substantial gift to someone who also has statutory standing, the clause is unlikely to matter. They will weigh the risk of losing the gift against the upside of a successful claim. If the upside is large enough, the clause is irrelevant.
If you leave a modest gift to someone on the margins of eligibility, the clause might tip the balance. They may decide the cost and risk are not worth it.
But you should never assume the clause will do the heavy lifting. If your estate plan depends on a forfeiture clause to hold the line, your estate plan is probably not strong enough.
A no-contest clause is not a substitute for proper estate planning. It is, at best, one signal among many that your intentions were clear and deliberate.
Better Ways to Reduce the Risk of a Will Dispute
If you want to minimise the chance of a dispute after you're gone, focus on what actually works.
1. Document Your Reasons
If you're excluding someone or leaving them less than they might expect, explain why. Write a letter of wishes or a statutory declaration. Set out the facts, the history, and your reasoning.
Courts take this seriously. If the estate can show that the will-maker understood the claimant's circumstances and made a deliberate choice, the claim is harder to win.
2. Update Your Will Regularly
An old will that does not reflect your current circumstances is vulnerable. If you've remarried, had more children, sold the business, or changed your mind, update the will.
An outdated will invites disputes.
3. Align All Estate Documents
Your will is only part of the picture. Superannuation nominations, life insurance policies, trust deeds, shareholder agreements, and property titles all matter.
If your will leaves everything to your spouse but your super goes to your adult children by default, you've created confusion and conflict.
Make sure the whole structure is consistent.
4. Provide Something Reasonable
If someone has a genuine claim to provision, leaving them nothing is asking for trouble. Consider whether a modest gift or a life interest might reduce the risk of a fight.
This is not about rewarding bad behaviour. It is about recognising that courts have broad discretion and eligible claimants often win something.
5. Use Binding Releases Where Appropriate
In some situations, it is possible to enter into a binding agreement that releases a person's right to make a family provision claim. In NSW, this is governed by section 95 of the Succession Act 2006.
A release must be properly drafted, fully informed, and usually involves independent legal advice. It is not something you can achieve with a clause in the will alone.
If you're negotiating an estate plan with an adult child, former spouse, or business partner, a release agreement may be worth exploring. But it must be done properly, or it will not hold up.
6. Get Advice Before You Sign Anything
If someone asks you to agree not to challenge a will, or if you're being offered a settlement to walk away, get independent legal advice.
These agreements are binding if done correctly. They are also complex, and the consequences of getting it wrong are serious.
Estate planning is not just about writing a will. It is about building a structure that reflects your intentions across every asset, every document, and every relationship. The clause is the least important part of that structure.
Can a No-Contest Clause Ever Be Useful?
Yes, in limited circumstances.
If you're dealing with beneficiaries who have no statutory standing and are only included out of generosity, a forfeiture clause may matter. If the person is a friend, a distant relative, or a non-dependent adult, and they have no entitlement under succession law, the clause might deter them from making noise.
But those cases are rare. Most disputes involve spouses, children, former spouses, stepchildren, and dependants. Those people have statutory rights. The clause does not help you there.
Another scenario: the clause may help position the estate in litigation. If a claimant brings a weak case and the will contains a forfeiture clause, the estate can argue that the claimant knew the risk and should wear the costs.
Again, this is marginal. It does not change the court's jurisdiction, but it might influence the cost outcome.
The point is this: a forfeiture clause is not worthless, but it is not the tool most people think it is. If your goal is to prevent a dispute, you need a better plan.
Do not include a forfeiture clause because it sounds tough. Include it only if it genuinely serves a purpose within a properly structured estate plan.
What Should You Do If You're Already Named in a Will with a Forfeiture Clause?
You receive a copy of the will. It says you get $100,000, but if you challenge the will, you get nothing.
What now?
First, get legal advice. Do not assume the clause is enforceable. Do not assume it is not.
The key questions are:
- Are you an eligible person under the relevant succession legislation?
- If you brought a family provision claim, would you have a genuine case?
- What is the value of the estate compared to what you've been left?
- What is the risk of losing your existing gift if the claim fails?
- What are the likely costs of running the claim?
If you're eligible and the provision is inadequate, the forfeiture clause probably cannot stop you. But you still need to weigh the practical risks.
If the clause deters you from bringing a claim you have a right to bring, that is not necessarily a problem. You are allowed to decide the fight is not worth it.
But if the clause is being used to pressure you into accepting something unfair, that is a different issue. Get independent advice before you sign anything or agree to walk away.
If someone tells you, "The will says you lose everything if you challenge it," do not take that at face value. Find out whether you actually have a claim and what your options are.
What Should an Executor Do If the Will Contains a Forfeiture Clause?
You're appointed executor. The will contains a forfeiture clause. A beneficiary brings a family provision claim anyway.
What now?
First, understand that the clause does not automatically disqualify the claimant. You cannot simply refuse to deal with them on the basis that they forfeited their gift by making a claim.
The court will decide whether the claim succeeds. If it does, the court will make orders adjusting the will. If it does not, the original terms of the will stand.
The forfeiture clause may be relevant to the court's reasoning, but it is not a defence to the claim.
Your job as executor is to administer the estate according to law, not to enforce a clause that the law does not recognise.
If the claimant has statutory standing and a genuine case, the estate should respond appropriately. That might mean negotiating a settlement. It might mean defending the claim. But it does not mean waving the forfeiture clause around as if it ends the dispute.
Get legal advice early. Understand the strength of the claim. Understand the cost and risk of defending it. Make decisions that protect the estate, not decisions based on a clause that probably does not work.
Executors have a duty to all beneficiaries and to the estate as a whole. A forfeiture clause does not override that duty.
When to Get Advice Before Signing or Changing a Will
If any of these apply to you, get legal advice before you finalise your will:
- You're excluding someone who might be an eligible person under succession law
- You're leaving assets unequally between children, spouses, or dependants
- You've remarried and have children from a previous relationship
- You're a business owner and the business represents most of the estate
- You're concerned about a specific person challenging the will
- You're thinking about including a forfeiture clause or similar provision
- Someone has asked you to sign a release or agreement not to challenge a will
- You're updating an old will and your circumstances have changed significantly
- You're dealing with complex assets like trusts, companies, or international property
- You're not sure who qualifies as an eligible person under your state's laws
Estate planning is not about writing a document and hoping it holds. It is about understanding the risks, building a structure that works, and making sure your intentions can withstand scrutiny.
A forfeiture clause might be part of that structure. But it is never the whole answer.
If you're relying on a clause to do the work, you're probably not relying on the right things. Get advice on what actually reduces dispute risk in your situation.
Final Thoughts
A no-contest clause sounds like a line in the sand. But in Australia, it is almost never the line you think it is.
You can put the clause in the will. You can make your intentions clear. You can signal that you do not want a fight. But you cannot override the statutory rights that give eligible people a path to claim anyway.
If your goal is to reduce the risk of a dispute, the real work happens before the will is signed. It happens when you align your super, your trusts, your shareholder agreements, and your property titles. It happens when you document your reasons and provide something reasonable to the people who matter. It happens when you update the will to reflect your current life, not the life you had ten years ago.
A forfeiture clause might help at the margins. It might deter someone who was never going to bring a serious claim anyway. But it will not stop a valid family provision application. And it will not save an estate plan that was poorly structured in the first place.
Litigation is expensive. It is slow. It damages relationships and drains the estate. The right strategy is not to rely on a clause that probably does not work. The right strategy is to plan properly, get advice early, and build a structure that can stand up to scrutiny.
If you're making a will, updating an estate plan, or facing a potential dispute, talk to someone who knows how these claims actually run. Someone who has defended estates and brought claims. Someone who can tell you what works and what does not.
Because clarity is the best defence. And a forfeiture clause is not clarity. It is wishful thinking dressed up as a legal provision.
Disclaimer: This article provides general information only and does not constitute legal advice. Estate and succession law varies by jurisdiction, and every situation is different. If you need advice on a specific matter, contact a lawyer who specialises in wills, estates, and succession disputes.
