How to Contest a Will in Victoria

1 December 2024

Understanding Your Options and Rights when Contesting A Will

The wording of a Will cannot be altered after it has been finalised, but how an estate is distributed can be challenged. This process, known as contesting a Will, enables eligible individuals to seek changes to the distribution of an estate if they feel they have been unfairly treated or left out entirely. Contesting a Will can involve legal mechanisms such as a Deed of Family Arrangement, mediation, or formal proceedings through the courts. Below, we’ll explore the steps involved, eligibility criteria, and essential considerations for those who want to contest a Will.

Understanding the Grounds for Contesting a Will

To contest a Will successfully, you must establish that the deceased, known as the testator, had a moral duty to provide for your proper maintenance and support but failed to do so adequately. Common reasons for contesting a Will include:

  1. Exclusion from the Will: If you have been left out entirely and believe you were owed provision.
  2. Unfair Provisions: If you were included but feel the provision does not adequately address your needs or the relationship you had with the deceased.
  3. Improper Influence or Capacity Issues: While this is a separate claim (challenging the validity of a Will rather than its distribution), undue influence or lack of testamentary capacity can also lead to disputes.
  4. Fraud or forgery: This is where you prove the will has falsified signatures or deceptive manipulation.

Eligibility to Contest a Will

Under Victorian law, eligibility to contest a Will is strictly defined by section 91(2)(b) of the Administration and Probate Act 1958 (Vic). The law recognises the following classes of people as eligible to make a claim:

Spouse or Domestic Partner:

This includes individuals married to the deceased or in a recognised de facto relationship at the time of death.

Children of the Deceased:

This includes biological children, adopted children, stepchildren, or anyone treated as a child by the deceased, such as someone who believed the deceased to be their parent.

Registered Caring Partners:

A person officially registered as a carer of the deceased.

Grandchildren:

If they were financially dependent on the deceased or had a close relationship.

Household Members:

Individuals who were part of the deceased’s household at the time of death or shortly before and were likely to remain so in the foreseeable future.

If you fall outside these categories, you cannot contest the Will under Victorian law, even if you feel wronged.

Proving Moral Duty and Inadequate Provision

To succeed in contesting a Will, you must demonstrate two key elements:

Moral Duty:

Prove that the deceased owed you a moral duty to provide for your maintenance and support. This often hinges on the nature of your relationship and any prior financial or emotional dependence.

  • Example: A child who was financially dependent on the deceased or received consistent support may argue that the deceased had a duty to continue this support.

Inadequate Provision:

Establish that the Will fails to make adequate provision for your proper maintenance and support. Courts consider several factors, such as your financial situation, health needs, and the size of the estate.

The Process of Contesting a Will (How to Contest a Will):

Seek Legal Advice:

Contesting a Will can be complex, and the first step should always be consulting with a qualified Wills and Estates lawyer. They will assess your eligibility and the strength of your claim.

File a Claim:

A formal claim must be lodged in the appropriate court if you proceed. In Victoria, this is typically the Supreme Court.

Timing is Critical:

The timeframe for contesting a Will is limited to six months from the date the grant of probate is issued. If you miss this deadline, your chances of success decrease significantly, although extensions may be granted in exceptional circumstances.

Attempt Mediation:

Many Will disputes are resolved through mediation, a process where all parties negotiate with the help of a neutral mediator to reach a mutually acceptable agreement. Mediation can save time, reduce costs, and avoid the stress of a court battle.

Court Proceedings:

If mediation fails, the dispute proceeds to court, where a judge will assess the evidence and make a binding decision. Factors considered include:

  • The size and nature of the estate.
  • The financial needs and circumstances of the claimant and other beneficiaries.
  • The deceased’s reasons for their distribution (if stated in the Will or other evidence).

Deed of Family Arrangement

In some cases, beneficiaries may agree to alter the distribution of the estate without going to court through a Deed of Family Arrangement. This legally binding agreement allows parties to redistribute the estate in a way that better addresses everyone’s needs. All affected beneficiaries must consent, making this option viable only if disputes are minimal.

Common Challenges in Contesting a Will

  • Time Constraints: Missing the six-month deadline can result in your claim being dismissed unless you can prove exceptional circumstances for the delay.
  • Costs: Will disputes can be costly, and while some claims are settled amicably, others may involve lengthy legal battles.
  • Evidence: The burden of proving moral duty, dependency, and inadequate provision rests on the claimant. Gathering and presenting compelling evidence is crucial.
  • Opposition from Other Beneficiaries: Contesting a Will can strain family relationships, as other beneficiaries may feel threatened by the claim.

Seeking Justice and Fairness

Contesting a Will is not about greed but fairness. For many, it represents a way to address perceived injustices and ensure that their financial and emotional needs are met. If you believe you have been unfairly treated in a Will, understanding your rights and the steps involved is crucial to navigating this challenging process.

how to contest a will

Final Thoughts

Contesting a will can be a complex and emotionally charged process, but with the right legal support, you can navigate it confidently and achieve a fair resolution. At Hentys Lawyers, we understand the sensitivities involved in will disputes and are committed to providing expert guidance every step of the way. If you’re considering contesting a will or need advice on your eligibility and chances of success, contact our experienced team today. We’ll help you protect your rights and secure the outcome you deserve.

Hentys Lawyers is here to guide you through every step, offering expert advice tailored to your needs. Contact us today to learn more about how we can assist with probate applications, contesting a will, challenging a will, family provision claims and inheritance law.