When an inheritance divides the family: why ordinary Australians are fighting over wills

For many Australians, the family home represents decades of mortgage repayments and the hope of leaving something behind for the children.

But when that home becomes an inheritance, different ideas about who deserves what can turn grief into a bitter family dispute.

For people approaching retirement, or helping ageing parents organise their affairs, the consequences can be deeply personal. A disagreement between siblings may threaten a surviving parent’s security. A second marriage can raise difficult questions about providing for a partner while remembering children from an earlier relationship.

Jodie Hall, Senior Associate at Armstrong Legal, says rising property values and financial pressures are making inheritance disputes a concern for ordinary households. “The surge in contested wills and estate litigation across Australia is fundamentally driven by shifting economic realities and evolving family structures rather than pure opportunism,” she says.

The Supreme Court of NSW’s 2024 Annual Review recorded 464 contentious probate filings, which involve disputes about matters such as a will’s validity, compared with 291 in 2020. Separately, there were 996 family provision filings in 2024, up from 880 in 2020, across New South Wales.

Why the family home has raised the stakes

You do not need a property portfolio to leave an estate worth arguing over. Hall says property price growth has pushed the value of many ordinary suburban homes beyond $1 million, making legal action financially worthwhile in circumstances where it might once have been too expensive.

For older homeowners, that can create an uncomfortable gap between how wealthy they feel and the value others attach to their estate. Someone living carefully on a retirement income may own a home their children see as the answer to substantial financial problems.

“Crucially, persistent cost-of-living pressures and housing un-affordability have reframed inheritance from an unexpected windfall into an economic lifeline,” Hall says.

She says even adult children in households earning more than $200,000 can face significant mortgage debt. A healthy income does not necessarily tell the whole story about someone’s finances, although financial pressure alone does not establish entitlement to an inheritance.

Blended families add another layer. There may be a surviving spouse to house and children from previous relationships with competing expectations.

Hall says unclear wording in DIY wills can also contribute to disputes, particularly when relatives believe promises have been made or someone has been unfairly excluded.

Why smaller estates can suffer the most

A legal battle can be especially damaging when there is relatively little cash available.

Hall says fees can reach tens of thousands of dollars before mediation, with costs potentially doubling if a dispute proceeds to a final hearing.

For an estate worth $300,000 to $600,000, that can consume a substantial share of the money available to beneficiaries.

“Unlike large multi-million-dollar estates that can absorb significant legal costs, modest asset pools are easily eroded by court battles,” she says.

Where the family home is the main asset, Hall warns that paying legal expenses or meeting a successful claim may force its sale. That can have serious consequences for a surviving spouse, carer or adult child still living there.

The damage can extend well beyond the estate accounts. Hall says disputes can cause severe emotional distress and permanent estrangement between siblings and other relatives. By the time an agreement is reached, relationships may have broken down beyond repair.

Two different reasons to go to court

“Contesting a will” is often used as a catch-all expression, but Hall says it is important to understand the distinction between two types of dispute.

A family provision claim generally accepts the will as valid. The applicant argues that adequate provision has not been made for their maintenance, education or advancement in life.

The court considers matters including the applicant’s circumstances, the estate’s size and the needs of other people with claims on it. A successful application can change how assets are distributed.

Challenging a will’s validity asks a different question: should that document be recognised as the deceased person’s legally effective will?

Reasons might include a lack of mental capacity to make the will, undue influence, fraud, or concerns that the person did not know and approve its contents.

Hall says these disputes can involve medical records and evidence about the circumstances in which the will was made. If the challenge succeeds, an earlier valid will may apply. Otherwise, the estate may be distributed under the relevant intestacy laws.

Who can claim, and who pays?

Eligibility for family provision claims depends on state and territory law. Spouses, de facto partners and children are among those who may qualify, but the rules for stepchildren, grandchildren and other relatives vary.

Being eligible to apply does not guarantee a successful claim.

Time limits also differ, making prompt advice important. In NSW, a family provision application generally must be filed within 12 months of death, although the court can permit a late application. legislation.nsw.gov.au

Hall says a claimant will usually notify the executor first. If early negotiations fail, court proceedings involve formal documents and sworn evidence about the applicant’s circumstances and relationship with the deceased.

Mediation gives the parties an opportunity to negotiate a settlement before a final hearing. In NSW, family provision applications are referred to mediation.

One particularly costly assumption is that the estate will automatically pay everyone’s legal bills. That is not guaranteed. The court decides costs, and an unsuccessful applicant can be ordered to pay their own expenses as well as the other side’s costs.

Hall says executors acting reasonably are generally able to recover their legal costs from the estate, but speculative claims carry financial risks.

A conversation worth having sooner

Hall expects inheritance disputes to remain elevated while property values and financial dependence between generations remain high.

For readers thinking about their own legacy, the interview raises some practical questions to take to an estate-planning solicitor. Does the will reflect current relationships? Have earlier gifts or family loans been properly recorded? Is a surviving partner’s housing position clear?

These questions become particularly important after a separation, a new relationship or a significant change in family circumstances.

A professionally prepared will cannot guarantee that nobody will bring a claim. But getting advice while you can explain your wishes gives you the opportunity to address ambiguity and consider the people who may depend on you.

For families already facing a dispute, understanding the likely costs before positions harden can be just as important as understanding the potential inheritance.

The home that took a lifetime to pay off can quickly become the most expensive argument a family has ever had.