Insights

Who Can Contest a Will in Melbourne, Victoria

19 November 2024

When someone passes away, their will sets out how their estate should be distributed. However, certain family members and dependants may have the legal right to contest a will in Victoria if they believe they have not received adequate provision from the estate.

Under the Administration and Probate Act 1958 (Vic), eligible people may apply to the court for a share, or a larger share, of a deceased person’s estate through a family provision claim, also known as a Testator’s Family Maintenance (TFM) claim.

However, not everyone can contest a will. Eligibility depends on your relationship with the deceased, and in some circumstances, whether you were financially dependent on them.

Understanding who can contest a will in Victoria is the first step in determining whether you may have grounds to make a claim.

Who Is Eligible to Contest a Will in Victoria?

Victorian law identifies specific categories of people who may be eligible to make a family provision claim.

These include spouses, domestic partners, children, stepchildren, grandchildren and certain other people who had a qualifying relationship with the deceased.

The following table provides an overview.

Relationship to the deceased	Can they contest a will?
Husband or wife	Yes, generally eligible
De facto or domestic partner	Yes, where legal requirements are met
Biological or adopted child	Yes, generally eligible
Stepchild	Yes, where legal requirements are met
Grandchild	Potentially, where dependency requirements are met
Former spouse or domestic partner	Potentially, in qualifying circumstances
Sibling	Not solely because they are a sibling
Parent	Not solely because they are a parent
Registered caring partner	Potentially, where dependency requirements are met
Member of the deceased’s household	Potentially, where dependency requirements are met

Being eligible to make a claim does not automatically mean that the claim will succeed. The court must also consider whether the deceased had a moral duty to provide for the applicant and whether adequate provision was made.

Can a Spouse or Domestic Partner Contest a Will?

A surviving spouse or qualifying domestic partner can generally contest a will in Victoria.

This may arise where a husband, wife or domestic partner has been excluded from the will or believes the inheritance they received is insufficient for their proper maintenance and support.

The court may consider factors such as:

• The length and nature of the relationship.
• The surviving partner’s financial circumstances.
• Their contributions to the household and relationship.
• Their age, health and future financial needs.
• The size of the estate and other beneficiaries’ needs.

A domestic partner may need to establish that their relationship satisfies the relevant legal requirements.

Former spouses and domestic partners may also qualify in certain circumstances, particularly where relevant family law property proceedings were unresolved or could have been commenced before the deceased’s death.

Can a Child Contest a Will in Victoria?

Yes. Children may be eligible to contest a parent’s will in Victoria.

This includes biological and adopted children, as well as stepchildren and people treated as natural children where the statutory requirements are satisfied.

Children may seek further provision if they were excluded from a will or believe their inheritance does not adequately provide for their maintenance and support.

Can an Adult Child Contest a Will?

Yes. Adult children may be eligible to make a family provision claim, even if they are financially independent.

However, adult children do not automatically have a right to a particular share of their parent’s estate.

The court may examine their financial circumstances, earning capacity, health, relationship with the deceased and the needs of other beneficiaries.

Different statutory considerations apply to children depending on their age, student status and disability.

Can a Stepchild Contest a Will?

A stepchild may be eligible to contest a will in Victoria, provided they satisfy the relevant legal definition and requirements.

Eligibility and the strength of a claim may depend on the family relationship, the applicant’s circumstances and whether the deceased had a moral duty to provide for them.

A stepchild’s entitlement should not be assumed simply because their parent was married to the deceased.

Can a Grandchild Contest a Will in Victoria?

A grandchild can contest a will in Victoria in certain circumstances, but being a grandchild alone is not enough.

A grandchild may qualify as an eligible person where they were wholly or partly dependent on the deceased for their proper maintenance and support.

For example, this may arise where a grandparent:

• Regularly contributed towards the grandchild’s living expenses.
• Provided financial support for essential needs.
• Helped support a grandchild who lived with them.
• Assumed an ongoing role in the grandchild’s financial maintenance.

Occasional gifts or a close emotional relationship may not be sufficient to establish the required dependency.

Can a Grandchild Contest a Will if their parent is still alive?

Potentially, yes.

A grandchild’s eligibility is not determined solely by whether their parent is alive or deceased. The relevant dependency requirements and circumstances of the relationship must be considered.

Even if a grandchild qualifies as an eligible person, they must still establish the legal grounds to receive further provision.

Can a Sibling Contest a Will in Victoria?

A brother or sister does not automatically have the right to contest a will in Victoria simply because they are related to the deceased.

Unlike spouses and children, Victoria’s family provision legislation does not list siblings as a separate eligible category.

However, a sibling may qualify under another statutory category, such as a qualifying member of the deceased’s household who was wholly or partly dependent on them.

For example, a sibling who lived with the deceased and relied on them for financial support may have circumstances that warrant legal assessment.

If a sibling believes a will is invalid because of undue influence, fraud, or lack of testamentary capacity, they may have a different type of legal challenge available.

Can a Parent Contest Their Child’s Will?

A parent is not automatically eligible to bring a family provision claim against their adult child’s estate in Victoria.

However, a parent may qualify under another category if they meet the relevant legal requirements.

This may include circumstances involving financial dependency and membership of the deceased’s household.

Parents who have concerns about a will’s validity may also need advice on whether a separate legal challenge is available.

What Grounds Do You Need to Contest a Will?

Being an eligible person is only the first requirement.

To succeed in a family provision claim, the applicant must establish that the deceased had a moral duty to provide for their proper maintenance and support and that the estate has failed to make adequate provision.

The court considers the individual circumstances rather than simply dividing the estate equally among family members.

Relevant considerations may include:

1. Relationship With the Deceased

The court may consider the nature and duration of the relationship, including the deceased’s responsibilities and obligations to the applicant.

2. Financial Circumstances

An applicant’s income, assets, liabilities, earning capacity and financial needs may influence whether further provision is appropriate.

3. Size of the Estate

The value and nature of the estate are relevant, particularly where there are several competing claims.

4. Health and Personal Circumstances

The applicant’s age, disability, health and future needs may be considered.

5. Contributions and Previous Support

The court may consider the applicant’s financial or non-financial contributions, as well as support previously provided by the deceased.

6. Needs of Other Beneficiaries

The court must also consider the interests and circumstances of other beneficiaries and eligible claimants.

A will is not necessarily legally inadequate simply because one beneficiary receives less than another. Each claim is assessed according to the relevant legal principles and evidence.

How Long Do You Have to Contest a Will in Victoria?

In Victoria, you must generally commence a family provision claim within six months of the grant of probate or letters of administration.

This deadline does not ordinarily begin on the date of death.

For example, if probate is granted on 1 March, the usual six-month period runs from that grant date.

The court may allow a claim outside the standard period in certain circumstances. However, the court can grant an extension at its discretion, and you must seek it before the estate is finally distributed.

Anyone considering a claim should seek legal advice promptly, especially as the deadline approaches.

What Is the Difference Between Contesting and Challenging a Will?

Although these terms are often used interchangeably, there is an important legal distinction.

Contesting a will generally refers to a family provision claim. The applicant does not necessarily dispute the will’s validity but argues that it does not provide adequate provision for them.

Challenging a will generally means disputing whether the will is legally valid.

Potential grounds for challenging validity include:

• The deceased lacked testamentary capacity when making the will.
• The will was created through undue influence.
• The document was forged, or the testator was defrauded.
• The will was not properly executed.
• The deceased did not know or approve the will’s contents.

These disputes involve different legal requirements, evidence and procedures.

How Do You Contest a Will in Victoria?

The process depends on the estate’s circumstances and the nature of the claim.

Step 1: Confirm Your Eligibility

Determine whether you fall within one of the eligible categories under Victorian legislation.

Step 2: Review the Will and Estate

Consider the provisions of the will, the approximate value of the estate and any relevant financial circumstances.

Step 3: Obtain Legal Advice

An estate litigation lawyer can assess your eligibility, potential grounds for a claim and the applicable deadline.

Step 4: Attempt to Resolve the Dispute

Where appropriate, the parties may explore negotiation or mediation to resolve the matter.

Step 5: Commence Court Proceedings if Required

If the matter cannot be resolved, you may need to commence formal proceedings to protect your position and seek further provision from the estate.

Many disputes are resolved without a final court hearing, although outcomes depend on the circumstances of each case.

Frequently Asked Questions About Contesting a Will in Victoria

Who can contest a will in Victoria?

Eligible people include spouses, qualifying domestic partners, children, stepchildren, certain former partners, financially dependent grandchildren, and others who meet the statutory categories. Eligibility alone does not guarantee a successful claim.

Can you contest a will if you were left nothing?

Yes, potentially. Being excluded from a will does not prevent an eligible person from making a family provision claim. The court will consider whether adequate provision should have been made.

Can grandchildren contest a grandparent’s will?

Yes, in certain circumstances. A grandchild generally needs to establish that they were wholly or partly dependent on their grandparent for proper maintenance and support.

Can siblings contest a will in Victoria?

Siblings are not automatically eligible because of their family relationship. However, a sibling may qualify under another eligible category, such as a financially dependent household member.

Can an adult child contest a parent’s will?

Yes. Adult children may be eligible, although the success of a claim depends on their circumstances, the deceased’s moral duty and the adequacy of the provision made.

Can you contest a will after probate has been granted?

Yes. In fact, the standard six-month time limit for a family provision claim generally begins when probate or letters of administration are granted.

Can you contest a will after six months?

The court may grant an extension in limited circumstances, provided the estate has not been finally distributed. An extension is not automatic.

Can you contest a will without going to court?

Some disputes can be resolved through negotiation. However, you may need court proceedings to preserve a claim within the statutory deadline or if the parties cannot reach an agreement.

Speak With Hentys Lawyers About Contesting a Will

Disputes over wills and deceased estates can involve complex family relationships, financial considerations and strict legal deadlines.

If you are unsure whether you can contest a will in Victoria, legal advice can help you understand your eligibility, the strength of a potential claim, and your options.

Hentys Lawyers can advise on family provision claims, contested estates, and estate litigation matters.

Contact Hentys Lawyers to discuss your circumstances and understand your legal options.

Disclaimer: This article provides general information about Victorian law and does not constitute legal advice. Eligibility, time limits and potential outcomes depend on individual circumstances. Seek independent legal advice before commencing or defending a claim.