Contesting a Will in Melbourne, Victoria

Victorian Will Dispute Lawyers & Solicitors

Contesting a Will is a challenging and often emotional process, requiring 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.

Legal Grounds for Contesting a Will in Melbourne, Victoria

Contesting a Will is not a decision to be taken lightly, and the law provides specific grounds under which a Will can be contested. Understanding these grounds is essential for determining whether you have a valid claim. The primary legal grounds for contesting a Will include:

Lack of Testamentary Capacity:

For a Will to be legally valid, the person who made the Will (the testator) must have had the mental capacity to understand the nature of their actions. This includes understanding the extent of their assets, their beneficiaries, and the consequences of their decisions. If it can be shown that the testator lacked this capacity due to illness, age, or mental disorder, the Will may be contested.

Undue Influence:

A Will must be made voluntarily and without coercion. If a person was pressured, manipulated, or unduly influenced into making specific provisions in their Will, this could be grounds for contesting it. Proving undue influence can be complex, as it often involves demonstrating that the testator was overpowered by another person’s actions, resulting in decisions that did not reflect their true wishes.

Fraud or Forgery:

The Will is invalid if it was created or altered through fraudulent means, or if the testator’s signature was forged. Fraud may involve someone misleading the testator about the Will’s contents or falsifying documents to benefit themselves or others.

Failure to Follow Legal Formalities:

For a Will to be legally binding, it must comply with specific legal formalities. This includes being in writing, signed by the testator, and witnessed by at least two people over 18 who were present at the time of signing. If these formalities are not followed, the Will may be able to be contested.

Inadequate Provision for Family Members:

In Victoria, certain family members and dependents can contest a Will if they believe they were not adequately provided for. This is known as a family provision claim. Eligible persons include spouses, children, stepchildren, and other dependents who can demonstrate financial need or dependency on the deceased.

The Process of Contesting a Will in Melbourne, Victoria

Contesting a Will involves several steps, each requiring careful attention to all the relevant facts, legal procedures and deadlines. At Hentys Lawyers, we guide you through every stage of the process to ensure your claim is handled effectively and efficiently. The key steps involved in contesting a Will in Victoria are as follows:

Initial Instructions:

The first step is to complete our online form and provide as much information as possible so that we can consider key information about the deceased’s Estate, including, but not limited to, determining whether Victorian law applies, whether Probate has been granted, whether the Estate contains enough wealth for a court to consider the matter should here be a dispute, your personal needs, financial situation, relationship with the deceased and other information.

Merit Assessment and Estimate of Costs:

Once you have completed our online form, our Solicitors can review your initial instructions to assess the legal issues, the type of claim you may have, the likely merit in successfully pursuing the claim, and likely process you would have to take. Our Solicitor may ask you for further information, and will guide you in obtaining it I you don’t have it, so that we can then provide you with a cost agreement that will explain the type of claim you may have, the scope of works involved in pursuing your claim, and the estimated costs involved. One of the most important considerations at this time is whether Probate has been granted or not, as a claim against the Estate must ordinarily be filed within six months from the grant of Probate.

Barrister Opinion:

Should you elect to proceed with Hentys, our practice is to immediately engage a Barrister’s for their opinion, to help build a strong case, and more importantly to comply with our Overarching Obligations and Proper Basis requirements in accordance with the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The Barrister may request additional documents that have not already been supplied, and will provide their opinion to our Solicitors. Subject to that opinion, the process to enforce your claim will begin.

Deed of Family Arrangement:

The next step is to begin the negotiations with the Executor of the Estate or their Solicitors, and at the very least, putting them on notice that you intend to file a claim against the Estate. The ideal outcome is to negotiate a Deed of Family Arrangement outside of court with the Executor and other claimants, prior to the 6 month deadline to commence proceedings.

Filing a Claim:

If no agreement can be reached, or when the 6-month deadline to file proceedings is near, and we have determined you have a valid claim, the next step is to file a claim in the appropriate court and serve the claim on the other parties.

Mediation and Negotiation:

Before the matter proceeds to court, the parties involved must often attempt mediation. Mediation is when an independent third party helps the disputing parties reach a mutually acceptable agreement. At Hentys Lawyers, we strive to resolve disputes through negotiation and mediation whenever possible, as this can save time, reduce costs, and help preserve family relationships.

Court Proceedings:

The case will proceed to court if mediation does not resolve the dispute. Contesting a Will in court involves presenting your case before a judge, who will decide the matter based on the evidence and legal arguments. Our skilled litigators are experienced in representing clients in Will disputes and will advocate strongly on your behalf.

Judgment and Resolution:

After hearing the case, the court will deliver a judgment. If the court finds it in your favour, the Will may be declared invalid, or the terms may be altered to reflect a fair distribution, which normally includes the legal costs of each party being paid by the Estate, however is not guaranteed. If your claim is unsuccessful, we will discuss any potential appeals or other legal options available to you.

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 the complexities and sensitivities involved in contesting a Will. Our team of experienced Will dispute lawyers in Melbourne is committed to providing compassionate, professional legal support tailored to your unique circumstances. We take a personalised approach to every case, ensuring that we fully understand your needs and work diligently to achieve the best possible outcome.

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.

Contact Hentys Lawyers Today

If you believe that a Will does not make adequate provision for you, or does not reflect the deceased’s true intentions or has been executed improperly, don’t hesitate to seek legal advice. Contact Hentys Lawyers today to discuss your case with one of our experienced Will dispute lawyers in Melbourne. We are here to provide the guidance and support you need to navigate this challenging process with confidence.