You've spent years watching your parents' modest house balloon in value. Maybe it was $200,000 in the nineties. Now it's worth $2.5 million. Your sibling just moved back in as the "carer". Your other sibling isn't returning calls. And you've just discovered there's a new will.
Welcome to estate litigation in 2026.
According to analysis by the Australian Financial Review, probate claims attacking the technical validity of wills across New South Wales, Queensland, Victoria and Western Australia have surged 53.4 per cent over five years, from 650 cases to 998. In Queensland, wills and estates list filings jumped 193 per cent. New South Wales saw a 71 per cent rise in probate claims alone.
Family provision claims, where beneficiaries argue a will doesn't provide adequate support, are also climbing: up 9.2 per cent in New South Wales and 28.7 per cent in Western Australia. Combined, total estate litigation filings rose 21.7 per cent, from 2030 to 2471 cases.
Why now?
Because the family home is no longer a modest asset. It's a life-changing windfall. And when $3 million sits on the table, people who would never have contemplated litigation suddenly start calling lawyers.
Key Takeaways
- Probate claims up 53 per cent: Direct attacks on a will's validity (capacity, undue influence, forgery) are surging as property values make litigation financially worthwhile
- Queensland leads the surge: Probate claims in Queensland jumped 193 per cent, reflecting rapid property appreciation in Brisbane and regional centres
- Two very different claim types: Probate claims attack whether the will is valid, family provision claims argue the will doesn't provide enough, and the evidence for each is entirely different
- Executors face personal risk: If you distribute an estate before time limits expire, you can be personally liable when a claim arrives
- Business estates are especially vulnerable: Family companies, unpaid present entitlements, loan accounts and discretionary trusts add layers of complexity and litigation risk
- Evidence during lifetime is what wins: As the Estate of Agnes Bruce case shows, clear contemporaneous medical and legal evidence created when the will was signed is often the only defence that works
What Is Driving the Spike in Estate Litigation?
Four forces are colliding at once.
Property Appreciation Has Made Estates Litigation-Worthy
Sydney solicitor MaryAnn de Mestre told the AFR: "When there is a house worth $3 million on the table, people who may never previously have contemplated litigation suddenly do. That fundamentally changes the stakes."
She's right.
In the Estate of Agnes Bruce, heard in the New South Wales Supreme Court last month, a Coogee house bought in 1977 for $55,500 was worth approximately $7.5 million when the testator died in 2024 aged 102. That's an appreciation of over 13,500 per cent.
One sibling challenged the will, alleging lack of capacity, undue influence, and a promise the house would be his after he renovated it for free. The Court rejected all claims for want of evidence. But the case illustrates what's happening: assets that were once modest background noise are now worth fighting over.
Intergenerational wealth transfer in Australia is currently valued at up to $5.4 trillion. Much of that sits in residential property. And compulsory superannuation, now mature for the first wave of retirees, has swollen estate values even further.
If your parents bought in the eighties or nineties, their estate probably dwarfs their lifetime income. And that changes the maths on litigation.
Longer Lifespans and Rising Dementia Rates
Brisbane barrister Jennifer Sheean, who told the AFR she was "run off her feet" and "absolutely smashed with work", pointed to another factor: "There is a rise in things like dementia. It opens the door for things like when they made that will, did they have capacity for it?"
People are living longer. And the longer someone lives, the more likely cognitive decline becomes an issue.
If your parent signs a will at 95 after a dementia diagnosis, expect the question of testamentary capacity to be raised. If there's also a history of multiple wills, if one child was present when the will was signed and others weren't, or if the distribution changed dramatically in the final will, the risk multiplies.
Capacity is a legal test, not a medical one. A person can have dementia and still have capacity to make a will, provided they understand what they're doing at the moment of signing. But proving that after death, when the will maker can't give evidence, is hard.
If a will is made late in life or after a dementia diagnosis, get a contemporaneous capacity assessment from a doctor or psychologist who meets with the will maker on the day of signing. That evidence is often the only thing that survives a probate challenge.
Blended Families and Competing Expectations
Blended families are now the norm, not the exception.
Jennifer Sheean identified this clearly: "There are big issues that come with blended families."
You have children from a first marriage. Your spouse has children from their first marriage. You remarry, buy a house together, and assume you'll leave everything to your current spouse, who will then leave it to all the children.
But what happens when your spouse remarries after you die? Or changes their will to favour their biological children over yours? Or sells the family home and moves overseas?
Family provision claims thrive in blended family scenarios. Adult stepchildren often have no automatic entitlement, but biological children may feel squeezed out by a new spouse. The result is litigation driven by competing moral claims, not legal ones.
And that's where things get expensive.
Cost of Living Pressure and Desperation
Nicholas Fisher, principal solicitor at Digital Age Lawyers, told the AFR: "We can't afford houses, we can't afford to live. It is desperation."
Under-40s who watched their parents' home double or triple in value often assumed they'd eventually inherit a deposit, or a property, or at least some buffer. When cost of living bites, when home ownership feels impossible, and when an inheritance suddenly seems like the only way forward, desperation makes litigation feel rational.
MaryAnn de Mestre put it bluntly: "What was once considered taboo, fighting publicly over a parent estate, is now increasingly viewed as a legitimate financial strategy."
That shift in attitude, combined with real financial pressure, is pushing more people into court.
Estate litigation is no longer just about fairness or vindication. For many claimants, it's a financial survival strategy. That changes the nature of the dispute and makes settlement harder.
Two Very Different Types of Estate Claims
Most people think "contesting a will" is one thing. It isn't.
There are two fundamentally different claim types, each with different evidence requirements, different time limits, and different prospects of success. Confusing them is the fastest way to waste money.
Probate Claims: Attacking the Will's Validity
A probate claim challenges whether the will is valid at all.
You're arguing the will should not be admitted to probate, meaning it should not be recognised by the Court. If you succeed, the will is set aside, and either an earlier valid will applies, or the estate is distributed under intestacy rules (the statutory default when there's no will).
Common grounds include:
- Lack of testamentary capacity: The will maker didn't understand what they were doing when they signed the will (dementia, delirium, medication, mental illness)
- Undue influence: Someone pressured or manipulated the will maker into signing (often alleged in cases where one child was the primary carer)
- Fraud or forgery: The signature isn't genuine, or the will maker was tricked about the contents
- Improper execution: The will wasn't properly witnessed or signed as required by state legislation
Probate claims require hard evidence. Medical records, witness statements, earlier wills, handwriting analysis, evidence of the relationship dynamics at the time of signing.
In the Estate of Agnes Bruce case, the challenger alleged all three: lack of capacity, undue influence, and a promise the house would go to him. The New South Wales Supreme Court rejected every ground for want of evidence. No medical evidence supported incapacity. No evidence showed undue influence. No documentary proof of a promise.
Without contemporaneous evidence, probate claims almost always fail.
Family Provision Claims: Arguing the Will Doesn't Provide Enough
A family provision claim doesn't attack the will's validity. It accepts the will is valid, but argues the distribution doesn't make adequate provision for the claimant.
These claims are brought under state legislation (Succession Act 2006 in New South Wales, Succession Act 1981 in Queensland, Administration and Probate Act 1958 in Victoria, Family Provision Act 1972 in Western Australia).
Eligibility is tightly defined. Generally, you must be:
- A spouse or de facto partner
- A child (including adult children)
- A former spouse in some circumstances
- A dependent (someone financially dependent on the deceased)
- A grandchild who was dependent on the deceased
If you're eligible, the Court considers whether adequate provision was made for your proper maintenance, education, or advancement in life. It looks at the size of the estate, your financial position, the deceased's relationship with you, any promises or expectations created, competing claims from other beneficiaries, and the deceased's reasons for the distribution (if expressed).
The Estate of Agnes Bruce case wasn't technically a family provision claim, it was a probate challenge on capacity and influence, but it illustrates a key point: without evidence of a promise, relationship breakdown, or financial dependence, Courts are reluctant to override a clear, recently made will.
Which Claim Type Applies to Your Situation?
Ask yourself:
- Are you challenging whether the will is genuine, properly signed, or made when the person had mental capacity? That's a probate claim.
- Are you challenging the fairness of the distribution, even if the will is technically valid? That's a family provision claim.
If you're not sure, get advice early. The evidence you need, the time limits, and the costs risks are completely different.
Probate claims and family provision claims can be run together, but they require different evidence. If you're contemplating litigation, identify which claim type applies before spending money on legal advice, because the wrong evidence won't save you.
What the Data Tells Us About Where Claims Are Rising
The AFR analysis breaks down the trend by state, and the picture is uneven.
New South Wales: Probate Claims Up 71 Per Cent
Probate claims in New South Wales rose from 300 in FY21 to 500 in FY25, a jump of 71.28 per cent. Family provision claims also rose, from 850 to 950, up 9.2 per cent.
What's striking is that the absolute number of family provision claims still exceeds probate claims by almost two to one. Translation: in New South Wales, people are more likely to accept the will is valid and argue it's unfair, than to attack the will's validity directly.
But the steeper rise in probate claims suggests property values are pushing more people to roll the dice on capacity and undue influence arguments, even when the evidence is thin.
Queensland: The Biggest Jump
Queensland probate claims exploded from 20 in FY21 to 50 in FY25, a rise of 193 per cent. That's the steepest increase in the country.
Why Queensland?
Property values in Brisbane and regional centres like the Gold Coast have surged. Interstate migration during and after COVID pushed prices higher. And Queensland's population is older on average, meaning more estates are passing through probate.
Queensland also has slightly different legislation around family provision (Chapter 3, Part 4 of the Succession Act 1981), and anecdotal reports suggest some practitioners view the Queensland jurisdiction as more claimant-friendly in borderline cases.
Jennifer Sheean, the Brisbane barrister quoted in the AFR article, confirmed the trend: demand for estate litigation work is at record levels.
Victoria: Modest Rise in Probate, Family Provision Claims Falling
Victoria saw probate claims rise from 330 in FY21 to 420 in FY25, up 27 per cent. But family provision claims fell almost 10 per cent, from 400 to 380.
This is the opposite trend to other states.
One possible explanation: Victoria's family provision regime (Part IV of the Administration and Probate Act 1958) is seen as narrower than New South Wales or Queensland, and recent case law may have tightened eligibility or made claims harder to win. If practitioners perceive lower success rates, fewer claims get filed.
The rise in probate claims, however, tracks the national pattern: when property values climb, attacking validity becomes worth the risk.
Western Australia: Probate Claims Stable, Family Provision Up 28 Per Cent
Western Australia probate claims have remained flat (10 to 15 cases), but family provision claims jumped from 100 to 180, up 28.7 per cent.
Western Australia's family provision legislation (Family Provision Act 1972) is relatively broad, and mining wealth, property appreciation in Perth, and superannuation balances have all lifted estate values sharply.
The data suggests Western Australian claimants are more likely to accept the will is valid and go straight to adequacy arguments, rather than attack capacity or influence.
Litigation patterns vary significantly by state. In New South Wales, probate claims are rising faster than family provision. In Western Australia, it's the reverse. If you're advising on risk or drafting a will in a high-value estate, understand your jurisdiction's litigation trends and case law.
What Executors Need to Know Right Now
If you've been appointed executor, or you're about to be, the rising tide of estate litigation changes your obligations and your risk profile.
Do Not Distribute Before Time Limits Expire
Every state has a time limit for bringing family provision claims. In New South Wales, it's 12 months from the date of death (section 58, Succession Act 2006). In Victoria, it's six months. In Queensland, it's nine months. In Western Australia, it's six months.
Extensions are possible, but the primary limitation period is short.
If you distribute the estate before the time limit expires, and a valid claim is then filed, you can be personally liable to the claimant. The estate assets are gone, the claimant has a Court order, and you're holding the bill.
The correct approach:
- Wait until the limitation period has expired, or
- Obtain a family provision clearance certificate (available in some states), or
- Get written consent from all eligible claimants before distributing, or
- Obtain Court approval to distribute early (rare, and usually only in urgent cases)
Do not assume silence means no claim is coming. As MaryAnn de Mestre noted, what was once taboo is now seen as legitimate strategy.
Get Legal Advice the Moment a Claim Is Threatened
If a beneficiary or potential claimant sends you a letter alleging lack of capacity, undue influence, or inadequate provision, stop.
Do not respond directly. Do not distribute assets. Do not negotiate terms without legal advice. Do not assume you can resolve it informally.
Estate litigation is technical, time-sensitive, and expensive to defend once it's in motion. Early advice can often head off a claim or limit the damage.
Your Duty Is to the Estate, Not to Any Individual Beneficiary
As executor, your duty is to administer the estate in accordance with the will, subject to any valid claims. You do not act for the residuary beneficiaries. You do not act for the claimants. You act for the estate itself.
That neutrality is critical, because if you take sides too early or act in a way that favours one party over another, you expose yourself to costs orders and removal applications.
If litigation starts, most executors apply to Court to be excused from active participation (except to provide evidence), and the parties fight it out. Your costs come out of the estate, provided you acted reasonably.
Watch Out for Informal Agreements and Variations
Beneficiaries sometimes want to vary the will informally: "Let's just split it differently and avoid Court." In some cases, that's sensible. But be careful.
Family provision claims and probate challenges can't be settled by informal agreement. Any variation that affects the distribution must either comply with formal deed of family arrangement rules, or be approved by Court order.
If you rely on an informal agreement and it later falls apart, you're exposed.
If beneficiaries propose varying the will to avoid litigation, get the agreement documented in a formal deed, ensure all affected parties sign, and consider filing it with the Court or obtaining consent orders. Never rely on verbal agreements or emails when estate assets are at stake.
What Business Owners and Directors Should Consider
If you're a business owner, your estate probably includes more than a house and a bank account.
It might include:
- Shares in a private company
- Unpaid present entitlements from a discretionary trust
- Loan accounts with a family company
- Partnership interests
- Director guarantees that survive death
- Succession arrangements tied to control of the business
Each of these adds complexity, and complexity increases litigation risk.
Shares in Private Companies
If your estate includes shares in a private company, the will controls who inherits legal ownership, but it doesn't control what happens next.
Does the company's constitution require the executor to offer the shares to other shareholders first (pre-emptive rights)? Do the shareholders have a buy-sell agreement that triggers on death? Is there a shareholder dispute already simmering?
If the company is the family business and one child has been running it for years while the others pursued different careers, leaving equal shares to all children can ignite a governance fight. The child running the business wants control. The others want dividends or a buyout. The will doesn't specify, and you've just created litigation.
Consider:
- Leaving control (51 per cent or more) to the child running the business, and compensating the others with other estate assets
- Creating a clear buy-sell mechanism in the will or shareholders agreement
- Documenting your intentions in a non-binding letter to the executor explaining why you structured it this way (helpful evidence if a family provision claim follows)
Unpaid Present Entitlements and Trust Assets
Discretionary trusts don't form part of your estate. The trustee controls the trust assets, and on your death, control passes according to the trust deed or any succession plan.
But unpaid present entitlements (UPEs) do form part of your estate.
If the family trust owes you $500,000 in unpaid distributions, that's an asset. The executor can call it in, and if the trust doesn't have liquidity, it might need to sell assets to pay it.
That can create conflict between beneficiaries who control the trust and beneficiaries who inherit the UPE debt. It also creates valuation disputes: is the UPE worth face value, or should it be discounted because the company can't pay?
The Estate of Agnes Bruce case didn't involve trusts, but the principle is the same: if your estate includes business structures with competing claims on the same underlying assets, document your intentions clearly and early.
Director Guarantees and Liabilities
If you've personally guaranteed company debts, those guarantees usually don't end when you die. The bank can pursue your estate.
Make sure your executor knows about any guarantees, and consider whether life insurance should sit in the estate or outside it (held by the company or a trust) to cover the liability.
If the estate has to sell the family business to pay a guarantee, and the sale takes 18 months, you've just locked your beneficiaries into a forced sale at the worst possible time.
Business estates are structurally more vulnerable to litigation than simple estates. If you own a company, trust interests, or partnership, get estate planning advice that integrates with your commercial structures, not generic will drafting.
How to Reduce the Risk of a Will Being Challenged
The Estate of Agnes Bruce case is instructive.
The testator made three wills. The final will, signed in 2015 at age 93, split the Coogee house equally between her two children. One child challenged the will nine years later, alleging lack of capacity, undue influence by the other sibling, and a promise the house would be his after free renovation work.
The New South Wales Supreme Court rejected all claims for want of evidence.
Why?
Because there was no contemporaneous medical evidence supporting incapacity, no evidence of pressure or manipulation at the time of signing, and no documentary proof of any promise.
Translation: the will withstood challenge because the evidence built at the time of signing was strong enough.
Here's how to replicate that.
Get a Capacity Assessment If There's Any Doubt
If the will maker is elderly, has been diagnosed with dementia or cognitive decline, has had a stroke, or has been on medication that might affect cognition, get a formal capacity assessment before the will is signed.
The assessment should be done by a doctor or psychologist who meets the will maker on the day of signing, reviews the draft will, and documents whether the person understands:
- What a will is and what signing it means
- The extent and nature of their assets
- Who their potential beneficiaries are (family, dependents)
- The effect of the dispositions they're making
That assessment becomes evidence. If a probate claim is filed five years later, the assessment is what wins.
Without it, you're relying on the solicitor's file note and the witnesses' memory. That's often not enough.
Document the Will Maker's Reasons
If the will makes unusual dispositions, cutting out a child, favouring one beneficiary heavily, leaving nothing to a spouse or including stepchildren over biological children, document the reasons.
Ask the will maker to explain, in their own words, why they've made these choices. Record it in a statutory declaration or a separate explanatory letter.
Courts respect testamentary freedom. You can leave your estate to anyone you want. But if you're going to make a distribution that invites a family provision claim, evidence of your reasoning strengthens the will's defence.
In family provision claims, one of the factors the Court considers is whether the deceased had good reasons for the distribution. If you articulated those reasons before death, and they're documented, the Court is far more likely to uphold the will.
Keep the Will and Estate Plan Current
Wills made decades ago don't reflect current property values, current relationships, or current family dynamics.
If your will was made before your divorce, before your remarriage, before your child became estranged, or before your house tripled in value, it needs updating.
Old wills invite claims because they don't match the current reality. And if the will was made in 1995 when the house was worth $180,000, but it's now worth $2.8 million and you haven't updated the will, you've just opened the door to both capacity and adequacy arguments.
Review your will every three to five years, or after any major life event (marriage, divorce, birth, death, estrangement, acquisition or sale of major assets).
Choose the Right Witnesses and Solicitor
The witnesses to your will are critical. If one of them is a beneficiary, or closely connected to a beneficiary, the will is vulnerable.
Witnesses should be independent, have no stake in the outcome, and ideally have a clear memory of the signing (which is unlikely if they witness dozens of documents each year).
The solicitor who drafts and supervises execution of the will also matters. If the solicitor took detailed file notes, asked probing questions, met with the will maker alone (without family members present), and documented capacity and voluntariness, that's powerful evidence.
A will prepared by a solicitor is much harder to challenge than a homemade will or a kit will, because the process itself creates a paper trail.
If your estate includes high-value assets, blended family dynamics, or potential for conflict, engage a solicitor who specialises in estate planning, not a generalist. The cost difference is minor. The litigation risk reduction is significant.
The Human Cost of Estate Litigation
The AFR article captures something important: the emotional toll.
Jennifer Sheean said it plainly: "People underestimate the stress that comes with litigation. But when it is litigation on top of grief and family dynamics, it is awful."
MaryAnn de Mestre added: "In estate litigation, parties often want emotional vindication. That is what makes these disputes particularly destructive."
One of her clients, Amelia, described an 18-month battle over her parents' home. Her brother installed himself as live-in carer after their parents developed Parkinson disease. The sisters went to Court for power of attorney to sell the home and fund aged care. Police were called three times. Thousands of dollars were spent.
The family home was the only asset. And it tore the family apart.
This is the reality of estate litigation. It's not clean. It's not rational. And it rarely produces the emotional vindication people are seeking.
If you're considering a claim, or defending one, understand the cost isn't just financial. It's the cost of relationships, the cost of years spent in dispute, and the cost of grief delayed or compounded by conflict.
Estate litigation is often about vindication, not money. But vindication is expensive, uncertain, and emotionally corrosive. Before you file, or before you defend, ask yourself: what do I really want, and is litigation the only way to get it?
What This Means for You
If you're reading this, you probably fall into one of three categories.
You're an Executor
You've been appointed to administer an estate. Maybe the will is old. Maybe there's a house worth $3 million. Maybe you've already had a text from a beneficiary who thinks the will is unfair.
Do not distribute before the time limits expire. Get legal advice the moment a claim is threatened. Document everything. Act neutrally. Do not take sides.
Your job is to administer the estate in accordance with the will, defend it if it's challenged, and ensure every eligible claimant has notice of their rights. You're not a mediator, you're not a family therapist, and you're not the judge. You're the executor.
You're a Potential Claimant
You think the will is invalid, or unfair, or both. Maybe you were left nothing. Maybe your sibling was favoured. Maybe you suspect undue influence.
Before you file, get advice on two questions: (1) Do you have standing (are you eligible to bring the claim?), and (2) What evidence do you have?
If you can't prove capacity was lacking, or influence was applied, or the will wasn't properly executed, a probate claim will fail. If you can't show financial need or inadequate provision, a family provision claim will fail.
And if you lose, you'll likely pay the other side's costs.
Estate litigation is not low risk. And the AFR data shows that most claims settle, often after significant costs have been incurred. If settlement is inevitable, consider whether you can negotiate before filing, not after.
You're Planning Your Own Estate
You own property. Maybe a business. Maybe you have a blended family, or estranged children, or complicated assets.
The data makes one thing clear: if your estate is valuable, it will be contested unless you reduce the risk now.
Get proper advice. Document your capacity and your reasons. Keep your will current. Build evidence during your lifetime, because the evidence built after you die is almost never enough.
And if you're cutting someone out, or favouring one child heavily, or leaving everything to a second spouse, expect litigation unless you address it now.
Conclusion
The 53.4 per cent surge in probate claims and the 21.7 per cent rise in total estate litigation is not a blip. It's a structural shift driven by property values, compounding superannuation, longer lifespans, and cost of living desperation.
As the AFR data shows, Queensland is leading the rise, New South Wales probate claims have jumped 71 per cent, and Western Australia family provision claims are up 28 per cent. The $5.4 trillion intergenerational wealth transfer is underway, and every dollar of property appreciation increases the incentive to litigate.
For executors, the message is simple: wait, document, and get advice early. For potential claimants, the message is equally simple: without evidence, you lose. For people planning their estates, the message is clear: the evidence you build now is what determines whether your will survives challenge.
Estate litigation is complex, yes. But the pathway to reducing risk is not. Get specialist advice. Build the evidence. Document your intentions. And don't assume silence means no claim is coming.
Property booms create wealth. They also create conflict. The question is whether you'll manage that conflict during your lifetime, or leave it for your family to fight over after you're gone.
Disclaimer: This article is for general information only and does not constitute legal advice. Estate litigation and estate planning involve complex legal issues that vary by state. If you are considering challenging a will, defending a claim, or planning your estate, seek advice from a lawyer who specialises in wills, estates and succession law.
