What is the Time Limit for Contesting a Will in Victoria?

17 December 2024

When a loved one passes away, disputes can arise over the contents or fairness of their will. Contesting a will in Victoria involves strict legal processes, including setting time limits. At Hentys Lawyers, we guide clients through these sensitive matters, ensuring they meet the necessary deadlines while pursuing their entitlements under the law. This blog explores the time limits for contesting a will in Victoria, who is eligible, and the steps to take if you’re considering a claim.

Understanding Contesting a Will in Victoria

Contesting a will generally involves challenging its fairness or validity. These challenges are divided into two main categories:

Family Provision Claims

A family provision claim is made when an eligible person believes they were unfairly excluded from the will or not adequately provided for. Such a claim aims to secure a fair share of the estate.

Validity Challenges

Validity challenges arise when there are concerns about the legal execution of the will, the testator’s mental capacity, or undue influence on the testator at the time the will was created.

The Legal Basis for Time Limits in Victoria

The Administration and Probate Act 1958 (Vic) outlines time limits for contesting a will. These deadlines are crucial to ensure the timely administration of estates and to protect the interests of beneficiaries and executors.

Time Limits for Contesting a Will

Family Provision Claims

According to Section 99 of the Administration and Probate Act 1958 (Vic), family provision claims must be filed within six months of the grant of probate or letters of administration. Probate is the legal process that validates the will and allows the executor to begin distributing the estate. Missing this deadline can significantly impact your ability to pursue a claim.

Challenges to the Validity of a Will

While there is no strict statutory deadline for validity challenges in Victoria, raising these concerns as soon as possible is advisable. Courts are less likely to entertain claims made after the estate has been distributed.

Who Can Contest a Will in Victoria?

Not everyone has the right to contest a will. Under Victorian law, only “eligible persons” can claim a family provision and contest a will. These include:

  • The spouse or domestic partner of the deceased.
  • A child of the deceased (including adopted or stepchildren in certain circumstances).
  • A grandchild or member of the deceased’s household who was financially dependent on the deceased.

For validity challenges, anyone with a legitimate interest in the estate, such as a beneficiary or a person excluded from the will, may have standing to bring a claim.

Consequences of Missing the Deadline

Failing to contest a will within the prescribed time limit can have serious implications:

  • Loss of Right to Claim: Courts are generally reluctant to consider claims lodged outside the six-month window for family provision matters.
  • Distribution of the Estate: Once an estate is distributed, it becomes increasingly difficult to recover assets or challenge the will.
  • Court’s Discretion: While courts may allow late claims in exceptional circumstances, you must provide compelling reasons for the delay.

Seeking an Extension for Family Provision Claims

If you have missed the six-month deadline, you may apply to the court for an extension. Courts assess extension requests on a case-by-case basis, considering factors such as:

  • The reason for the delay.
  • Whether the estate has already been distributed.
  • The merits of the claim.

Courts generally require that the delay not prejudice the rights of beneficiaries or the executor.

Steps to Take When Contesting a Will

If you are considering contesting a will, acting promptly and seeking legal advice is essential. Here’s how Hentys Lawyers can help:

  1. Initial Consultation: We assess your eligibility, the strength of your claim, and the applicable time limits.
  2. Lodging Your Claim: We prepare and file the necessary documents within the required timeframe.
  3. Negotiation and Mediation: We strive to resolve disputes amicably, saving time and costs for all parties.
  4. Court Representation: If a resolution cannot be reached, we provide expert representation in court to pursue your entitlements.

Why Choose Hentys Lawyers?

At Hentys Lawyers, we understand that contesting a will is an emotional and complex process. Our team offers compassionate, practical advice tailored to your circumstances. We are committed to protecting your rights and ensuring you receive a fair outcome.

Contact Hentys Lawyers Today!

Contesting a will in Victoria requires a clear understanding of the applicable time limits and legal processes. At Hentys Lawyers, we are here to guide you through each step, ensuring your claim is lodged on time and supported by compelling evidence. Contact our team today for expert advice and representation if you believe you have grounds to contest a will.

Acting promptly can make all the difference in protecting your rights and securing your future.