Contesting a Will
Contesting a Will in Victoria refers to making a Testator’s Family Provision Claim (“TFM Claim”) against a Deceased Estate.
On 1 January 2015, changes were made to the Victorian legislation in relation to persons who may be entitled to bring a TFM claim. The changes apply to estates where the Deceased died on or after this date.
In Victoria, you may contest a Will if:
- You are an Eligible Applicant; and
- You have been left without adequate provision, proper maintenance and support. The Court considers a number of factors when ascertaining whether an estate has made adequate provision and whether the deceased had an obligation to you. (See What Does the Court Consider When Making a Claim). Each scenario differs and we recommend that you call us for a free case assessment.
A TFM Claim can be brought in Victoria if:
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- The Deceased was domiciled in Victoria at the date of death.
- The Deceased owned real and personal property in Victoria at the date of their death.
- The person bringing a TFM claim is an Eligible Applicant, as defined under Section 90 of the Administration and Probate Act 1958 (VIC).
- A Grant of Representation (Grant of Probate or Grant of Letters of Administration) has been obtained.
- A TFM claim needs to be filed with the Court within 6 months from the date on which probate has been granted to the Executor(s) of an estate. Sometimes the Court will allow for late filing of a claim however special leave to do so from the Supreme Court is required.
Section 90 of the Administration and Probate Act 1958 (VIC) provides the following definition of an Eligible Person in relation to commencing a TFM claim:
- Spouse or Domestic Partner at the time of death.
- Former Spouse or Domestic Partner as at the date of death who was able to take proceedings against the deceased under the Family Law Act and who did not take such proceedings and was prevented by the death of the deceased from taking them, or who did take proceedings and could not finalise them because of the death of the deceased.
- A Registered Caring Partner. A carer can only bring a claim if they are in a “registered caring relationship” as defined under the Family Law Act 1975 and that the relationship was with the deceased. A relationship of this nature must not be for a “fee or reward” and between two people who are not a couple or married to each other. The key issue is that the relationship must be registered, and that person was wholly or partly dependant on the deceased for their proper maintenance and support.
- A grandchild of the deceased who was wholly or partly dependant on the deceased for their proper maintenance and support.
- A member of the deceased’ s household who was wholly or partly dependant on the deceased for their proper maintenance and support
- Children are defined as:
- Under 18 years of age; or
- Was a full-time student aged between 18 and 25; or
- Has a disability (as defined in Section 90 of the Administration and Probate Act).
- A stepchild, or adopted child of the deceased, subject to the categories listed above.
- An adult child who has difficulty supporting their own financial needs or has medical need. The adult child claimant must demonstrate the degree to which he or she is not capable by reasonable means of adequately providing for their own proper maintenance and support.
- A “believing child” This is where the child was treated by the deceased as a natural child and the chid believed the deceased was their parent.
Persons who do not fall under the “eligible person” criteria include, but are not limited to, nieces nephews, cousins, siblings and house mates.
Some claims can settle without protracted legal proceedings, simply via negotiation with the Estate. Alternatively, we can commence court proceedings on your behalf if pre-litigation negotiation cannot achieve a settlement.
Contesting a Will can be a complex and emotionally challenging process, often requiring legal advice and representation to navigate the court system and resolve the dispute.
If you are considering making a claim for further provision from a deceased estate, or are not sure whether you are an eligible person to make a claim, you should act immediately and contact our office to speak to one of our lawyers to assess the merits of your case.
CHALLENGING THE VALIDITY OF A WILL
Challenging the Validity of a Will means you are a person with an interest in a deceased estate and have standing to bring a challenge if you believe the Will is invalid. This typically occurs when someone believes that the Will does not accurately reflect the deceased person’s wishes or that there were issues with how the Will was made.
Common reasons for contesting a Will include:
- Lack of Capacity: Claiming that the deceased did not have the testamentary capacity to make a valid Will at the time it was created.
- Undue Influence: Arguing that the deceased was pressured or manipulated by someone else to make or change the Will in a way that does not reflect their true intentions.
- Improper Execution: Asserting that the Will was not signed or witnessed correctly according to legal requirements, making it invalid.
- Fraud: Claiming that the Will was forged or that the deceased was deceived into signing a Will under false pretenses.
- Family Provision Claims: In some jurisdictions, family members or dependents who feel they were unfairly left out or inadequately provided for may challenge the Will to seek a larger share of the estate.
If you believe the Will is invalid, then a Probate Caveat should firstly be lodged to put the Court on alert that something is “wrong” with the Will and stop any Grant of Representation being made. The Probate Caveat will stall the probate process until the Court hears from the Caveator and the Executor as to the validity of the Will. A hearing will take place and the Court will make a decision based on the facts presented to it as to whether the Will is valid or not.
Please contact our office to book an appointment to discuss challenging the validity of a Will today.