Contested estates and will disputes in Chinese families
Reviewed by Justin Chua, principal, Chua Tan Associates · Updated 18 October 2026
In Victoria, a person who believes a will has not made adequate provision for them can bring a family provision claim under Part IV of the Administration and Probate Act 1958 (Vic), usually within six months of the grant of probate or letters of administration. Separately, a will can be challenged as invalid, and an executor can be supervised or replaced by the court. Where assets are spread across Australia, Hong Kong, mainland China or Malaysia, the first questions are which law applies to which asset and which deadlines are already running.
What we see in these disputes
Most contested estates are disputes within one family. Common patterns include:
- Children treated unequally, often because a parent believed one child had already been helped.
- A will leaving the main assets to sons, with daughters given a token amount or nothing.
- A second spouse and the children of an earlier marriage, each believing they were promised the family home.
- A parent’s property in Australia bought for a child who lives overseas, with nothing in writing.
- Several wills in different countries and languages which overlap or contradict each other.
Family provision claims: who can apply
A family provision claim does not say the will is invalid. It asks the court to order more of the estate for the applicant because the deceased had a moral duty to provide for them and did not do so adequately. The court looks at the applicant’s needs, the size of the estate, the relationship and the competing claims of others.
Only “eligible persons” may apply. For deaths since 1 January 2015, they include:
- a spouse or domestic partner at the date of death;
- a child or stepchild, including an adult child;
- a former spouse or domestic partner who could still have brought property proceedings under the Family Law Act 1975 (Cth) when the deceased died;
- a grandchild, a registered caring partner, the spouse of a child who died within a year of the deceased, or a member of the deceased’s household, but these applicants must show they were wholly or partly dependent on the deceased.
Being an adult child does not by itself guarantee an order.
The six-month time limit
The application must ordinarily be filed within six months after the grant of representation. The court can extend time, but only if the application is made before the estate has been finally distributed, weighing the delay, the explanation, prejudice to beneficiaries and the strength of the claim.
In NSW the limit is 12 months from death, and the court can designate “notional estate”, bringing back property that passed outside the will. Victoria has no general equivalent.
Challenging whether the will is valid
A validity challenge argues the document should not be admitted to probate, so an earlier will or the intestacy rules apply. The main grounds are:
- Lack of testamentary capacity: the will-maker did not understand what a will is, what they owned or who might have a claim, often because of dementia.
- Lack of knowledge and approval: the will-maker did not understand the contents, for example where a parent did not read English and only a beneficiary explained the will.
- Suspicious circumstances: a beneficiary arranged the lawyer, gave instructions or was present at signing, so the court looks more closely.
- Undue influence: the will-maker was coerced. This is hard to prove; persuasion or family pressure alone is not enough.
- Forgery or fraud.
Informal wills and wills made in Chinese or overseas
The Wills Act 1997 (Vic) allows the Supreme Court to admit a document that was not properly signed and witnessed if the deceased intended it to be their will. A will made overseas may be treated as properly executed if it complied with the law of the place where it was made, or of the person’s domicile, habitual residence or nationality. A Chinese-language will needs a certified translation and evidence of the foreign law, but it can be effective in Victoria.
Executor disputes and removal
Many disputes are really about the executor: delay, refusing information, living in the estate property rent-free, or favouring one side of the family. Beneficiaries can ask for accounts. Where an executor has a conflict, refuses to act or mismanages the estate, the Supreme Court can remove them and appoint an independent administrator. Courts do not do this lightly, so keep a written record of requests and answers.
Assets overseas
Land is governed by the law of the place where it is located; movable assets such as bank accounts and shares by the law of the deceased’s domicile at death. In practice:
- A Victorian grant does not by itself let anyone deal with a flat in Hong Kong, land in Malaysia or an account in Shanghai. Those assets usually need a local grant, a resealed grant or a local succession procedure.
- Hong Kong and Malaysia generally allow Australian grants to be resealed; mainland China has its own procedures through a notary or court.
- An Australian court can take overseas assets into account when deciding provision from local assets, even if it will not make orders over the overseas property.
What courts have done
- [Re Tang [2017] VSCA 171](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2017/171.html): An Australian citizen living in China wrote an unwitnessed note in Chinese in a Shanghai hospital, leaving his Australian bank accounts to his mother in Melbourne. The trial judge refused to admit it, but the Court of Appeal held it could be admitted to probate because it was valid under Chinese law. A Chinese-language document made overseas can operate as a will in Victoria, but proving foreign law takes time and evidence.
- [Grabovic v Yang [2022] VSC 417](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2022/417.html): A will made in China in 2016 referred to “my property” without mentioning the deceased’s Victorian assets. His son from an earlier marriage and his widow disputed whether it covered the Victorian property or intestacy applied. The court held the Chinese will did cover the Victorian assets. Coordinated wills would have avoided the litigation.
- [Re Hinton; Carter v Ryan [2025] VSC 666](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2025/666.html): A daughter waited more than a decade after her mother’s death, until her brother had also died, before applying for further provision. The court dismissed the claim as having no real prospect of success and ordered her to pay the executor’s costs. Delay can be fatal, and costs risk is real.
Costs
The executor’s reasonable costs usually come out of the estate, and a successful applicant will often have costs paid from the estate too. That is not automatic. An unsuccessful applicant usually bears their own costs, and can be ordered to pay the executor’s costs where the claim had no reasonable prospect of success. In smaller estates, costs can consume much of what is in dispute, so an early realistic assessment and early mediation matter.
How quickly to act
If you think you have a claim, get advice well before six months from the grant. Ask the executor in writing not to distribute. Executors on notice of a claim should not distribute until it is resolved. For overseas assets, gather certificates, title records and translations early, because foreign procedures are slow.
How we help
Chua Tan Associates acts for beneficiaries, claimants and executors in contested estates in English, Mandarin and Cantonese. Where both sides are willing, a private resolution can be arranged through the Chinese Australian Dispute Resolution Centre (CADRC). Contact us on +61 3 9602 3988.
FAQs
My father left everything to my brother. Can I contest the will?
Possibly. An adult child is an eligible person, but the outcome depends on your needs, your relationship with your father, the size of the estate and your brother’s position.
The six months has passed. Is it too late?
Not necessarily. The court can extend time if the estate has not been finally distributed, but you need to explain the delay and act immediately.
My mother made a will in Chinese in Hong Kong. Is it valid in Victoria?
It may be, if it complied with the law of the place it was made or of her domicile or nationality. You will need a certified translation and, if challenged, evidence of the foreign law.
Who pays the legal costs?
Often the estate pays the executor’s costs and sometimes a successful claimant’s, but an unsuccessful claimant may bear their own costs and sometimes the executor’s.
Do we have to go to court?
Most family provision cases settle at mediation. A private mediation can be arranged before proceedings are issued if both sides agree.
Talk to us about your matter
Book a confidential consultation in English, Mandarin or Cantonese, or call +61 3 9602 3988.
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General information only, not legal advice. Every matter turns on its own facts. Reviewed by Justin Chua, principal, Chua Tan Associates.
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