Insights

Who Can Contest a Will in Melbourne, Victoria

19 November 2024

Not everyone who feels left out of a will is legally allowed to do something about it. In Victoria, only a person who fits into a specific legal category — known as an “eligible person” — can contest a will through a family provision claim

In short: you can contest a will in Victoria if you are the deceased’s spouse or domestic partner, a former spouse or partner, a child (including a stepchild or adopted child), a registered caring partner, a dependent grandchild, or someone who was financially dependent on the deceased as a household member. Being unhappy with what you received isn’t enough on its own — you also need to show the will-maker had a moral duty to provide for you, and that what they left you (if anything) doesn’t properly meet your needs.

Here’s how that breaks down in practice.

The legal categories of “eligible person” under the Administration and Probate Act

Eligibility to contest a will in Victoria is set out in section 90A of the Administration and Probate Act 1958 (Vic), which is a key part of Victoria’s estate law. You fall into one of these categories, or you generally can’t bring a claim at all:

• A spouse or domestic partner of the deceased at the time of their death (including a de facto partner assessed on a genuine domestic basis)
• A former spouse or domestic partner, including where, under the Family Law Act 1975, family law proceedings were pending and property settlement proceedings had not been finalised at the time of death
• A child of the deceased, including an adopted child, and including someone who believed — for a substantial period of their life — that the deceased was their parent and was treated as their natural child
• A stepchild (including a step child), in certain circumstances
• A person in a registered caring relationship — someone who provided domestic support and personal care without payment, including unpaid care for a family member
• A grandchild, where the grandchild was wholly or partly dependent on the deceased
• The spouse or domestic partner of a child of the deceased, if that child dies within a year of the deceased
• A person who was, or had been, a member of the deceased’s household and was wholly or partly dependent on them — or who would likely have become so in the near future.

If you don’t fit into one of these categories, a family provision claim generally isn’t available to you, even if you feel strongly that the outcome is unfair; these categories concern claims against the deceased’s estate, not simply dissatisfaction with the will. See making a family provision claim for how this works once eligibility is established.

Fitting a category isn’t enough on its own

Being an eligible person gets you through the door — it is only the start of a TFM claim. The Court will then ask two further questions:

1. Did the deceased owe you a moral duty to provide for your proper maintenance and support, given your relationship?
2. Is the provision you received inadequate for that purpose, including whether it amounted to adequate provision?

A financially independent adult child with a distant relationship to a parent who left a modest estate to a long-term carer, for example, faces a much harder case than a young child who was wholly dependent on a parent and received nothing. The court considers — and the court assesses — the size of the estate, your financial position, your relationship with the deceased, your earning capacity, and the competing needs of other beneficiaries. These claims arise where the deceased failed to make adequate provision for proper maintenance and support.

Common questions about family provision claim eligibility

Can a stepchild contest a will in Victoria? Yes, in certain circumstances — typically where the deceased had taken on a parental role, or there was a degree of dependency, with claims assessed under Victorian estate law on the particular facts of the relationship and dependency. Stepchildren don’t have an automatic right in the way biological or adopted children do, so this is worth discussing with a lawyer to assess your specific situation.

Can a grandchild contest a will? Only if the grandchild was dependent on the deceased — for example, where a grandparent had taken on a primary caregiving or financial support role. As a separate example of need-based circumstances for an eligible child of the deceased, a child who is a full time student may have a stronger claim. A grandchild with no dependency relationship generally isn’t eligible.

Can an estranged child contest a will? Yes — being estranged doesn’t remove your eligibility as a child of the deceased. It can, however, affect whether the Court finds a moral duty was owed, and how much weight that estrangement carries depends heavily on the circumstances (including who caused the estrangement and whether contact was attempted).

Can a sibling, friend, or carer who isn’t a registered caring partner contest a will? Generally, no, unless they fall within the “member of household and dependent” category. Informal care is different from a registered caring relationship, and unpaid support alone doesn’t automatically qualify someone unless the statutory category is met.

What if I’m not an eligible person — do I have any options? Eligibility for a family provision claim is separate from challenging whether the will itself is valid. If you have concerns about whether there is a valid will, including issues about mental capacity, undue influence, fraud, or improper signing and witnessing, challenging wills is a different legal pathway — read our guide to contesting a will on the grounds it’s invalid for more. A person named in the will, or in an earlier will, may also have rights to inspect documents under the Wills Act 1997 (Vic).

How much time do you have? Understanding time limits

This is the part people miss most often: an eligible person generally has six months from the grant of probate or letters of administration to file a family provision claim, and these time limits matter. That six-month period will usually run from the grant made after the deceased’s death. The Court can extend this only in limited circumstances — usually where estate assets have not yet been distributed — and extensions are rarely granted by the court.

If the deceased died intestate after the deceased died without a valid will, the same urgency applies when seeking provision from the deceased person’s estate.

If you think you may have a claim, the most important first step is finding out quickly whether the grant has already been made, and how much time you realistically have left.

Talk to a wills dispute lawyer for legal advice

Eligibility rules sound straightforward on paper, but real families are messier than legal categories — blended families, estrangement, informal caring arrangements, and stepchildren raised as your own all complicate the picture, so many people require legal advice early because eligibility and supporting material can be complex. The fastest way to find out where you stand is to talk it through with someone who deals with these claims every day.

You should seek legal advice promptly so you can gather evidence about dependency, financial need, medical issues, and the estate before positions harden, and early advice can sometimes help avoid court proceedings and common disputes from escalating.

Legal costs also matter in these claims: the person bringing the claim usually pays their own legal costs, and costs can increase significantly — sometimes doubling — if the matter goes to trial. Some firms offer an initial consultation at about $295 in Victoria, and No Win, No Fee arrangements may be available for suitable claims.

Contact our wills and estates team for a confidential assessment of whether you’re an eligible person and what a family provision claim could mean for you. Read more about making a family provision claim

This page provides general information about Victorian succession law and isn’t a substitute for advice on your specific circumstances.

Contact Hentys Lawyers for assistance today!

Understanding who can contest a will is crucial for both potential claimants and executors, particularly when assessing whether the deceased person’s estate made adequate provision for an eligible claimant. While the law sets clear eligibility criteria, each case is unique, and the outcome depends on a range of factors, including financial need, the nature of the relationship, the size of the estate, whether the claimant can support themselves by reasonable means, and what ongoing support they may need. If you believe you are eligible to contest a will or are involved in a will dispute, seeking professional legal advice and ongoing support is essential to achieving the best possible outcome. Contact Lawyers today!