Contesting a Will in Melbourne, Victoria

Victorian Will Dispute Lawyers & Solicitors

Contesting a Will is a challenging and often emotional process that requires a thorough understanding of the law and a strategic approach. At Hentys Lawyers (Hentys), we provide expert legal support for clients who want to contest a Will or navigate Will disputes in Melbourne, Victoria.

Our experienced team is dedicated to protecting your rights at this difficult time.

What Does It Mean to Contest a Will?

Contesting a will usually involves making a Family Provision Claim — an application to the Court seeking adequate provision from a deceased estate where the will (or intestacy) fails to make proper provision for an eligible person.

This is distinct from challenging a will, which concerns the will’s legal validity (for example, where there are concerns about capacity, fraud, or undue influence).

Both options may be available depending on the circumstances, and our lawyers will advise on the most appropriate course of action.

Legal Grounds for Contesting a Will in Melbourne, Victoria

Contesting a will is a serious legal step and should not be undertaken lightly. Victorian law provides specific, limited grounds on which a will may be contested. Understanding these grounds is essential in determining whether you have a valid claim and the most appropriate legal pathway.

The primary legal grounds are as follows.

Lack of Testamentary Capacity

For a will to be legally valid, the person making the will (the testator) must have had sufficient mental capacity at the time the will was executed. This requires that the testator understood:

The nature and effect of making a will
The extent and value of their assets
The claims of potential beneficiaries
The consequences of the decisions made

If evidence shows the testator lacked capacity due to illness, age-related cognitive decline, a mental disorder, or medication effects, the will may be challenged as invalid.

Undue Influence

A will must reflect the testator’s true and voluntary intentions. If a person was pressured, coerced, or manipulated into making certain provisions, the will may be challenged on the grounds of undue influence.

Undue influence cases can be complex, as they often require evidence that:

Another person exercised control or dominance over the testator, and
The resulting will does not reflect the testator’s independent wishes.

This may arise in circumstances involving dependency, isolation, or significant power imbalances.

Fraud or Forgery

A will is invalid if it was created or altered through fraudulent conduct or forgery. This may include:

Forging the testator’s signature
Altering a will without the testator’s knowledge or consent
Misleading the testator about the contents or effect of the will

Where fraud or forgery is proven, the court may set the will aside entirely.

Failure to Comply with Legal Formalities

Victorian law imposes strict formal requirements for a will to be valid. Generally, a will must:

Be in writing
Be signed by the testator.
Be witnessed by at least two adults present at the time of signing.

If these requirements are not met, the will may be invalid and open to challenge. While courts can sometimes admit informal wills, this depends on the circumstances and evidence available.

Inadequate Provision for Family Members (Family Provision Claims)

Separate from challenging a will’s validity, certain eligible people may contest a will on the basis that it fails to make adequate provision for their proper maintenance and support. This is known as a Family Provision Claim.

Eligible applicants may include:

Spouses and domestic partners
Children and stepchildren
Former spouses or partners
Other dependents who can demonstrate financial reliance on the deceased

The court assesses whether the will makes adequate provision having regard to the applicant’s needs, the size of the estate, and competing claims.

The Process of Contesting a Will in Melbourne, Victoria

Contesting a will involves multiple legal steps, each governed by strict procedures and time limits. Careful preparation at every stage is critical to protecting your rights and maximising the prospects of a successful outcome.

At Hentys Lawyers, we guide clients through each stage of the process to ensure their claim is managed strategically, efficiently, and in compliance with Victorian law.

1. Initial Instructions

The process begins by completing our online enquiry form and providing detailed information about your circumstances and the deceased estate. This allows us to assess key matters, including:

Whether Victorian law applies
Whether Probate or Letters of Administration have been granted
The size and complexity of the estate
Your relationship with the deceased
Your financial position, needs, and dependency (if applicable)

Providing accurate and complete information at this stage helps avoid delays and ensures that your matter is properly assessed from the outset.

2. Merit Assessment and Cost Advice

Once your initial instructions are received, our solicitors review the information to assess:

The type of claim available to you
Your eligibility to bring a claim
The likely prospects of success
The most appropriate legal pathway

We may request further documents or information to properly assess your matter. Once this review is complete, we will provide a cost agreement setting forth the scope of work, the estimated legal costs, and the funding considerations.

A critical factor at this stage is whether probate has been granted, as claims against an estate must generally be commenced within six months of the grant of probate.

3. Barrister’s Opinion

If you decide to proceed, our standard practice is to engage an experienced barrister at an early stage. This ensures:

A strong legal foundation for your claim
Compliance with the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic)
That your claim has a proper legal basis

The barrister may request additional documentation and will provide a formal opinion, which informs the next steps in enforcing your claim.

4. Negotiation and Deed of Family Arrangement

Where appropriate, we commence negotiations with the executor of the estate or their legal representatives. This often includes formally placing them on notice of your intention to bring a claim.

Our objective at this stage is to resolve the matter through a Deed of Family Arrangement, ideally before court proceedings are required and within the applicable time limits. Early resolution can significantly reduce costs and emotional strain.

5. Filing a Claim

If negotiations are unsuccessful, or the statutory deadline is approaching, and we have determined that you have a valid claim, we will file proceedings in the appropriate court and formally serve the claim on all relevant parties.

This step ensures your rights are preserved within the required timeframe.

6. Mediation and Ongoing Negotiation

Before a contested will matter proceeds to trial, the parties are generally required to attempt mediation. Mediation involves an independent third party facilitating negotiations to reach a mutually acceptable resolution.

At Hentys Lawyers, we prioritise negotiated outcomes wherever possible, as mediation can:

Reduce legal costs
Shorten timeframes
Preserve family relationships

7. Court Proceedings

If mediation does not resolve the dispute, the matter will proceed to court. This involves presenting evidence and legal submissions before a judge, who will determine the outcome based on the merits of the case.

Our litigation team is experienced in complex estate disputes and will advocate firmly and strategically on your behalf.

8. Judgment and Resolution

After hearing the matter, the court will deliver its decision. If your claim is successful, the court may:

Alter the distribution of the estate
Set aside the will (in validity challenges)
Order that some or all legal costs be paid from the estate

While costs are often paid from the estate, this is not guaranteed. If your claim is unsuccessful, we will advise you on whether there are grounds for appeal or alternative options available.

Client Guidance: How to Contest a Will

If you are considering contesting a Will, it’s important to approach the process with a clear understanding of the steps involved and the potential challenges. Here is some guidance to help you navigate this complex process:

Seek Legal Advice Early: The sooner you seek legal advice, the better. Time limits apply, and early action can prevent the estate from being distributed before your claim is resolved.
- Understand the Costs: Contesting a Will can be costly, and while the court may order that costs be paid from the estate, this is not guaranteed. Discuss the potential costs and risks with your lawyer before proceeding.
Prepare for Emotional Challenges: Will disputes can strain family relationships and be emotionally taxing. It’s important to approach the process with clear objectives and be prepared for its personal impact.
Consider Mediation: Mediation can be a more amicable and cost-effective way to resolve disputes. Be open to this process, as it can lead to a quicker and less adversarial resolution.
Gather Evidence Thoroughly: The success of your claim will depend on the strength of your evidence. Work closely with your lawyer to gather all necessary documentation and testimony.

Why Choose Hentys Lawyers for Contesting a Will?

At Hentys Lawyers, we understand that contesting a will is not only legally complex, but often emotionally challenging. Our experienced will dispute lawyers in Melbourne provide clear, strategic advice combined with a compassionate approach, ensuring you feel supported at every stage of the process.

We take the time to understand your personal circumstances, financial position, and objectives before recommending a course of action. Every matter is approached individually — there are no generic solutions — and our focus is always on achieving a fair, practical outcome while managing risk, cost, and emotional strain.

With extensive experience in contested estates and succession disputes, we guide clients through negotiation, mediation, and court proceedings with confidence and discretion. Our commitment is to protect your interests, provide honest advice, and pursue the best possible outcome under Victorian law.

Frequently Asked Questions (FAQs) About Contesting a Will in Melbourne, Victoria

What does it mean to contest a Will?

Contesting a Will is the action taken when you have been left out of the Will or feel you have been treated unfairly by the Testator (deceased) within their Will.

What is Probate?

Probate means proof of the Will. Once the Will has been proven to the satisfaction of the Court – that is, the Supreme Court (Probate Division) agrees that it is the last valid Will of the deceased, probate is granted to the Executor of the Will. It authorises the Executor to administer the Estate. The Executor’s duties include paying debts of the estate, releasing assets and distributing those assets to the beneficiaries. A Will cannot be contested until Probate has been granted by the Supreme Court.

Will I end up in court by contesting a Will?

Even though the law recognises a person’s right to choose who will inherit his or her property, there are often very good reasons why a person should be contesting a Will. Whatever your reasons may be, Hentys Lawyers will represent you throughout the process, providing you with the information and answers you need.

If you are considering contesting a Will, this doesn’t always mean that you will end up in court. Hentys Lawyers’ focus is to work with all other parties to come to an agreement without the need of going to a Hearing in court. However if it cannot be resolved, it’s important to remember that each Contested Will claim is subject to a court-appointed mediation as a further opportunity to avoid the time consuming and costly court process. In the last 5 years, 95% of Hentys Lawyers Estate matters have settled at mediation.

Who Can Make a Family Provision Claim?

Currently, the legislation provides the application for a family provision order may only be made by or on behalf of an eligible person as defined as:

The spouse or domestic partner at the time of death;
A child of the deceased (including an adopted or stepchild or someone who believed the deceased to be their parent and was treated as such) who, at the time of death, was:
A former spouse or former domestic partner of the deceased, if the person at the time of the deceased’s death would have been able to make proceedings under the Family Law Act 1975 (Cth) and has either:
A child or stepchild of the deceased not referred to above (i.e. adult children)
A registered caring partner;
A grandchild;
The spouse or domestic partner of a child (i.e. son or daughter-in-law) of the deceased where that child has died within one year of the deceased’s death;
A person who was or had been (and was likely to be in the near future) a member of the deceased’s household.

What Other Considerations Will The Court Look At In A Will Contesting Case?

In making a family provision order, the Court considers 1) The deceased’s Will;

2) Evidence of the deceased’s reasons for making the Will in the terms they did, such as a codicil;

3) Any other evidence about the deceased’s intentions with respect to the claimant, including:

Family relationship between the deceased and the applicant;
obligations/responsibilities the deceased had to the applicant in the past;
any physical, mental or intellectual disability of any applicant or beneficiary; and
the character/conduct of the applicant.

Also, in determining the amount of provision to be made by a family provision order, the Court considers:

1) The degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person:

So whether the applicant was being maintained by the deceased person before that person’s death and whether the deceased had assumed that responsibility;
the financial resources and financial needs of the applicant;

2) the age of the applicant.

The degree to which the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support, including;
the size of the Estate and liabilities;
any contribution of the applicant to building up the estate or the welfare of the deceased/deceased’s family.

If you are not eligible to contest a Will under the circumstances mentioned above, you may still be in a position to challenge the Will or bring another type of Will Dispute to the table.

What is Considered Adequate Provision?

In Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19, Dixon CJ noted there is no set criteria for what is considered adequate and what is not when he considered the relative nature of the words:

‘Adequate’ and ‘proper ‘in particular, must be considered as words, which must always be relative. The ‘proper’ maintenance and support of a person making a claim on an estate is relative to that person’s circumstances, such as their age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to their needs but also to their own capacity and resources for meeting them.’

How do I obtain a copy of the Will?

Pursuant to Section 50 of the Wills Act 1997 (Vic) the following persons are entitled to inspect a Will of the deceased (to enable you to then contest it):

1) any person named or referred to in the Will;
2) any person named or referred to in an earlier Will as a beneficiary
3) spouse at the date of death;
4) domestic partner of the deceased;
5) parent, guardian or children of the deceased;
6) any person who would be entitled to a share if the deceased died intestate (without a Will)
7) any parent of a minor referred to in the Will or who would be entitled to a share if the deceased died intestate;
8) any creditor or person who has a claim against the estate and produced evidence of that claim.

However, not every one of the aforementioned has the right to make a family provision claim against the deceased’s Estate (and therefore contest the Will).

How much will it cost to contest a Will?

Based on the information you provide when completing our online form, and any further information that is requested of you, our lawyers will assess the general merits of your case and send you a cost estimate contained in a cost agreement. The cost agreement will contain the scope of works required, our terms of engagement as well as your rights under the Legal Professional Uniform Law 2014 (NSW) where applicable.

If our Solicitor considers that your claim does not have merit, they will let you know immediately so that you can obtain a second opinion.

What is a Family Provision Claim?

A Family Provision Claim in VIC, NSW and QLD is an application to the Court to seek adequate provision from the Estate of a deceased person. Generally this will be necessary where no provision, or no adequate provision has been made for the claimant in the Will.

These types of claims are commonly referred to as Part IV claims, Testator Family Maintenance (TFM) claims or ‘contesting a Will’. These orders may be made in either the Supreme or Country Courts, where the Court is satisfied that:
1) The claimant is an eligible person, and
2) The deceased had a moral duty to provide for that person’s maintenance and support, and
3) The distribution of the deceased’s estate as set out in the Will, or pursuant to the rules of intestacy, fails to make adequate provision for their proper maintenance and support.
If you think the deceased has not adequately provided for you, the following steps show how a RFM Claim would proceed.

Step 1: Determine that the Estate is within Victoria’s jurisdiction, and whether you are an ‘eligible person’ to launch a family provision claim under s 91(2)(b) of the Administration and Probate Act 1958 (Vic).

Step 2: Prove that the deceased had a moral duty to provide for your proper maintenance and support. For example you were maintained by them at some point in time. (Note: To launch a proceeding under the Administration and Probate Act 1958 (Vic), the maintenance does not have to occur in Melbourne, Victoria or anywhere in Australia).

Step 3: Prove that the distribution of the deceased’s estate as set out in the Will, or pursuant to the rules of intestacy, fails to make adequate provision for your proper maintenance and support.

Is There a Time Limit for Contesting a Will?

In Victoria, you have only six months from the date that a grant of Probate is made to contest a Will. The law can be harsh in the sense that often ‘out of time’ is synonymous with being ‘out of luck’ – although in some exceptional circumstances, an extension of time may be granted. After hearing from the affected parties, the court may extend the time limit as necessary. Importantly, the applicant for an extension cannot be made after the final distribution of the Estate, as no distribution of any part of the Estate made prior to the applicant can be disturbed because of the applicant or any order made thereon.

We know that the first step can be the hardest. However, if you think that you are entitled to more from a Will or Victorian-based Estate, considering the time constraints, it is important to get in touch with Hentys Lawyers as soon as possible.

Based in the heart of Melbourne, we are easily accessible, and are committed to delivering the best solutions to each of our clients. We look forward to achieving the best possible outcome for you and your family.

On What Grounds Can You Contest A Will?

Contesting a Will refers to making a ‘family provision claim’. It is an application to the Court to seek adequate provision from the Estate of a deceased person. I.e. you feel as if you have not been adequately provided for by the deceased, so you want to contest their, his or her wishes.

Each Australian State and Territory has its own laws regarding contesting Wills. While the situations under which a Will can be contested are similar across the nation, you may be able to contest a Will where the Estate is in Victoria under the following circumstances:

you were dependent on the deceased;
your share of the estate is not adequate for your maintenance and support;
your relationship with the deceased only began after the last Will was made;
The Will does not provide for the partner or children in another marriage or de facto relationship;
you believe that the Will is grossly unfair;
you can legally prove that the Will maker was not in a sound state of mind when they made a Will;
you can legally prove that the Will maker was unduly influenced by one or more of the beneficiaries; or
The Will is unclear.

Who Can Contest A Will? Am I eligible to contest a Will?

People eligible to contest a Will are defined by their relationship with the deceased under Section 90 of the Administration and Probate Act 1958 (Vic) as follows:

The spouse or domestic partner at the time of death;
A child of the deceased (including an adopted or step-child or someone who believed the deceased to be their parent and was treated as such) who, at the time of death, was:
A former spouse or former domestic partner of the deceased, if the person at the time of the deceased’s death would have been able to make proceedings under the Family Law Act 1975 of the Commonwealth; and has either
A child or stepchild of the deceased not referred to above (ie adult children)
A registered caring partner;
A grandchild;
The spouse or domestic partner of a child (ie son or daughter in law) of the deceased where that child has died within one year of the deceased’s death; or
A person who was or had been (and was likely to be in the near future) a member of the deceased’s household.

Thinking About Contesting a Will?

Strict time limits apply in Victoria. Speak with an experienced Melbourne will dispute lawyer today.

Contact Hentys Lawyers for confidential advice.