Probate and Administration Disputes
Contested applications for grant of probate or letters of administration, caveats opposing a grant, applications to revoke a grant already made, and priority disputes over who has the right to administer the estate. Run for beneficiaries, executors, and potential administrators of substantial estates.
What are probate and administration disputes?
Before a deceased estate can be administered, the state Supreme Court must formally recognise someone as having authority to deal with the estate. That formal recognition comes in the form of a grant. There are two main types:
- Grant of probate, made where there is a valid will and issued to the executor named in the will
- Grant of letters of administration, made where there is no valid will (intestacy), or where the executor named in the will has died, cannot be found, or has declined to act
Probate and administration disputes arise at the point of the grant. Either someone opposes the grant being made (by lodging a caveat), disputes have arisen about who is entitled to be the administrator, the grant that was made turns out to have been made on incorrect information (and so faces an application for revocation), or the estate involves complications (multiple wills, foreign wills, missing beneficiaries) that require court supervision.
Probate disputes are separate from the substantive challenges to the will itself (see Challenging the Validity of a Will) and separate from claims by beneficiaries for further provision (see Family Provision Claims). Probate is the procedural door. Get it right, and the rest of the estate matter runs from a clean foundation.
"The whole team from the top of Aptum Legal down to the support team have all been very professional and always gone above and beyond for me and my family. I will highly recommend them for future work with people in my network needing legal professionals."
Types of probate and administration disputes Aptum runs
Contested applications for grant of probate
Where the will exists and the executor is named, but the validity of the will, the identity of the correct executor, or some other threshold question is in dispute. This is where the substantive fight often begins in a contested estate.
Caveats to probate
A caveat lodged with the probate registry prevents a grant from being made without first hearing the caveator. Aptum lodges caveats to preserve a client's position (typically where a challenge to the will is being investigated) and acts for executors seeking to remove caveats that are blocking a proper administration.
Applications for letters of administration
Where there is no will (or no valid will), the state's intestacy rules determine who is entitled to be granted letters of administration and, ultimately, who inherits. The order of priority is set by legislation, and disputes arise where multiple people claim priority or where the strict priority creates an outcome the family says is not in the estate's best interests.
Priority disputes among potential administrators
Where multiple family members are entitled to apply for a grant, they can dispute who should be granted the office. The court has discretion to depart from the strict statutory priority in appropriate cases (typically where the higher-priority person is unfit, absent, or conflicted).
Applications to revoke a grant
Where a grant has been made on incorrect information (a later will surfaces, the will admitted to probate turns out to be invalid, the grantee turns out to be unfit or lacking capacity), an application can be brought to revoke the grant and (usually) issue a new one to the appropriate person.
Intestacy distribution disputes
Where the deceased died without a valid will, the estate is distributed under the state's intestacy rules. These rules are technical and produce sometimes surprising outcomes, particularly for blended families, de facto partners, and estates involving multiple relationships. Distribution disputes under intestacy are common where the intestacy result cuts across what the family understood to be the deceased's wishes.
Grants involving multiple or contested wills
Where the deceased left more than one will, or where the validity or currency of the will presented for probate is contested, the grant application itself becomes the vehicle for resolving which will (if any) should govern.
Foreign wills and resealing
Where the deceased had a will made in another jurisdiction, or held assets in more than one country, the pathway to administration involves either resealing a foreign grant or applying for a fresh grant in Australia. Disputes arise where jurisdictions conflict or where the foreign grant's authority is contested.
Grants ad colligenda bona
A limited grant to preserve estate assets in urgent circumstances, typically issued while the main grant application is being contested. Useful where an unadministered estate contains assets that are perishable, exposed to loss, or under threat.
Renunciation and passing over of executors
Where a named executor renounces the office (declines to act), the grant passes to the next entitled person. Where an executor refuses to renounce but is unfit to act, the court can pass over them and grant to another. Both processes are contested more often than the surface would suggest.
How Aptum runs a probate or administration dispute
Value conversation
A no-cost first meeting where you tell us the deceased's circumstances, the state of any will or wills, the family structure, and what has happened at the registry. We tell you which pathway fits (caveat, contested application, revocation, priority dispute) and what the timing looks like.
Pathways assessment
If the matter is realistic and you want to move forward, we scope it properly, identify the death certificate, will documents, family relationships and asset schedule that need to be assembled, and give you a costed engagement plan.
Execution
We run the matter. Caveat if appropriate, formal exchange with the other party, court application, evidence gathering, mediation, and hearing where the matter does not resolve. Grants take time (registrar review, contested hearings) and we run the process to keep the matter moving.
The caveat pathway (the most important early tool)
A caveat lodged with the probate registry is the most important early tool in a contested estate. Its practical effect is that the registry will not issue a grant without first hearing the caveator. This gives the caveator time to investigate, to gather evidence, and to bring any substantive challenge (to the will's validity, to the identity of the correct executor, to the priority of an administrator) at the right time.
What a caveat is not. A caveat is not itself a challenge to the will. It is a procedural device to pause the grant. The substantive challenge is made separately, either by opposing the grant when the caveator is called on, or by bringing separate proceedings.
Timing. A caveat can be lodged at any time before the grant is made. Once the grant is made, the caveat pathway is no longer available, and the remedy becomes an application to revoke the grant, which is a harder path.
Duration. Caveats have a limited life (typically six months in most jurisdictions) and can be renewed. They can also be removed on application by the person seeking the grant, which forces the caveator to make out their substantive objection or withdraw.
Practical rule. Where there is a serious concern about a will's validity, the identity of the executor, or the propriety of a proposed administrator, the caveat should be lodged early rather than late. Lodging is not itself an aggressive act, and it preserves the client's position while the underlying issue is investigated.
Intestacy in detail
Where a person dies without a valid will, they are said to have died intestate. Their estate is distributed under the state or territory intestacy rules, which are set out in the state Administration and Probate Act (or equivalent legislation).
The general pattern. In most jurisdictions, the intestacy rules give priority to the surviving spouse or de facto partner, then to children, then to more distant relatives (parents, siblings, grandparents, aunts and uncles). The exact rules vary in every state, and the practical operation is technical.
Where disputes arise.
- De facto status. Whether the deceased was in a de facto relationship at the time of death, and (in some jurisdictions) whether that de facto qualifies under the specific intestacy definition.
- Blended family entitlements. Second-marriage spouses competing with children of a first marriage over what proportion of the estate each takes.
- Statutory legacies and preferential thresholds. Most jurisdictions give the surviving spouse a fixed dollar preferential entitlement plus a share of the remainder. Disputes arise over the calculation of the estate for these purposes, particularly where the deceased held property jointly.
- Missing beneficiaries. Where a person entitled under intestacy cannot be located, the estate cannot be finalised until the position is resolved (searches, court orders, insurance).
- Family provision overlay. Even where the intestacy distribution is technically correct, family provision claims can still be made against the estate (see Family Provision Claims).
The intestacy rules produce hard outcomes. Long-term partners who never formalised the relationship, step-children not adopted by the deceased, and estranged spouses who never divorced can all find themselves in unexpected positions under intestacy. Where the outcome does not reflect what the family understood to be the deceased's wishes, the practical pathway is often a family provision claim, sometimes coupled with an intestacy priority dispute.
Revocation of a grant
Where a grant of probate or administration has been made on incorrect information, the court can revoke the grant. This is a significant step because it disturbs an administration that may already be well underway.
Common grounds for revocation.
- A later will has been found
- The will admitted to probate has been shown to be invalid (in a separate validity challenge)
- The grantee has become unfit (misconduct, incapacity, conflict of interest emerged after the grant)
- The grant was made on the basis of incorrect information about the deceased's estate or family
- The grantee has failed to administer the estate
Consequences of revocation.
- The grantee's authority ends
- A new grant is usually made to the appropriate person
- Actions taken by the grantee in good faith before revocation may be protected, but actions after the revocation are not
- Where distributions have been made, they may or may not be recoverable depending on the circumstances
Revocation is a live remedy but a harder path than a caveat. The general rule is: caveat if you can, revocation if you must.
How the matter actually moves
Initial position
Death certificate, will (if any), family tree, asset schedule, understanding of what other family members intend. This foundation determines the pathway.
Caveat or objection
Where a grant application is imminent and there is a substantive concern, a caveat is lodged. Where a grant application has been made and a caveator has objected, the parties are called on to state their positions.
Evidence exchange and negotiation
Whatever the underlying issue (will validity, priority, unfit grantee, missing beneficiary), the evidence is assembled and exchanged. Most matters produce a substantive negotiation window at this stage.
Court application
Where the matter does not resolve, a formal application (for grant, revocation, or removal) is filed in the state Supreme Court probate list. Registrars manage the matter through case-management, evidence exchange, and (where required) mediation.
Contested hearing
Where the matter does not settle, the court hears the evidence and makes orders. The court can grant, refuse, revoke, or make conditional orders as appropriate.
An accomplished farmer has his property protected in a family trusts dispute
Probate disputes often lead directly into disputes over the substantive estate assets. Where the substantive assets are held in a family trust rather than in the personal estate, the estate administration and the trust dispute intersect.
Our client was a farmer with more than AUD $15M in farming assets held in a family property trust. When trust and estate disputes intersected with a family law separation between beneficiaries of the trust, Aptum intervened to protect the client's position.
What's changing in Australian probate law
Informal wills and dispensing powers
Every state now has a dispensing power allowing the court to admit non-standard documents (drafts, text messages, video recordings) as valid wills where the court is satisfied they represent the testator's testamentary intention. This has changed what probate applications look like and has produced a growing category of contested grants where the "will" is something short of a formally executed document.
De facto and intestacy interaction
As de facto relationships become more common (and as the length and structure of those relationships vary), the intestacy rules that determine whether a de facto partner qualifies are being tested more often. The definitions differ meaningfully between states.
Cross-border estates are more common
Australians increasingly hold assets in multiple jurisdictions (property overseas, foreign superannuation, foreign investments), and the resealing and cross-border grant pathways are being used more.
Registrar practice tightening
State Supreme Court probate registrars have become more rigorous in scrutinising grant applications, particularly where the will presented shows any irregularity. This shifts more matters into contested territory earlier.
Frequently asked questions
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What is the difference between probate and letters of administration?
Probate is granted where there is a valid will, to the executor named in the will. Letters of administration are granted where there is no valid will (intestacy) or where the named executor cannot or will not act. Both are formal court orders that give the grantee authority to deal with the estate.
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What is a caveat to probate?
A document lodged with the probate registry that prevents a grant from being made without first hearing the caveator. It is the standard tool for pausing a grant application while a challenge to the will (or the proposed executor) is investigated. Caveats have a limited life and can be renewed.
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Can a grant of probate be revoked?
Yes. Where the grant was made on incorrect information (a later will has been found, the will admitted to probate was invalid, the grantee has become unfit), an application to revoke the grant can be brought. Revocation is a harder path than a pre-grant caveat and is used where the caveat pathway is no longer available.
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Who is entitled to apply for letters of administration in an intestacy?
The state Administration and Probate Act sets an order of priority, typically starting with the surviving spouse (or de facto partner), then children, then more distant relatives. Where multiple people have equal priority, they can dispute who should be granted. The court has discretion to depart from strict priority where cause is shown.
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What happens if there is no will and no next of kin can be found?
Extensive searches are conducted. Where no next of kin can be located, the estate ultimately passes to the state under the intestacy rules (called "bona vacantia"). In practice, family members are almost always identifiable eventually, and searches can take considerable time.
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Do de facto partners inherit under intestacy?
In every Australian state and territory, de facto partners are recognised for intestacy purposes, but the definition of "de facto" varies. Length of the relationship, cohabitation, and (in some states) registration of the relationship are relevant. Where a de facto claim is contested, it can become a substantive dispute in its own right.
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How long does it take to get a grant of probate?
For an uncontested application in most Australian jurisdictions, several weeks from filing. Where the registry raises requisitions (questions about the application), longer. Where the application is contested (caveat lodged, priority dispute, unfit grantee), months to years depending on complexity.
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Can multiple wills lead to a probate dispute?
Yes. Where more than one will exists, the probate application must be for the correct (usually the most recent valid) will. Where the currency or validity of a will is contested, the dispute is resolved through the probate application itself, or via a separate validity challenge.
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What is a "grant ad colligenda bona"?
A limited grant to preserve estate assets in urgent circumstances, typically issued while the main grant application is being contested. Useful where the estate contains perishable, exposed, or at-risk assets that need immediate management.
Thinking on probate and administration disputes
Aptum publishes regularly on the questions that decide probate and administration disputes matters.
The Aptum probate disputes team
Michael Buscema
Michael Buscema spent 11 years with the ATO and Commonwealth Treasury, including as acting Assistant Commissioner, before joining Aptum as a practice lead. He acts for private wealthy groups and families in complex, high-value disputes, and has negotiated settlement and security arrangements totalling over $1 billion.
Estate disputes over substantial asset pools are rarely just about the will — trust structures, superannuation and tax consequences run through them, and Michael brings senior experience on exactly those fronts.
Nigel Evans
Nigel Evans, Aptum's Managing Director and Co-Founder, leads Aptum's estates practice. Before founding Aptum, Nigel spent 11 years at the commercial Victorian Bar, where much of his practice touched on trust structures, fiduciary breach and equitable remedies. He is listed in Best Lawyers in Australia for Commercial Litigation (2026) and recognised by Doyle's Guide as a Leading Commercial Litigation and Dispute Resolution Lawyer.
Offices
Aptum services estates clients across Australia from three offices.
Get clarity on your probate or administration matter
Grant applications move faster than most people expect, particularly where the estate looks uncomplicated on the surface. Once a grant is made, the caveat pathway closes and the harder revocation path is all that remains. If you have concerns about a grant application, or about the will or the proposed executor or administrator, book the value conversation this week.
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