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Can you contest a Will in Victoria after probate has been granted?

When it comes time to administer the estate of a loved one, their testamentary wishes may come as a surprise.

Perhaps you haven’t inherited the assets you were expecting to receive or have been fully excluded from mention. This can cause heightened emotions between all of those involved in what’s already a challenging time.

Those in this position often start debating their next steps and wondering if there’s anything they can do – which may lead them down the path of taking legal action. For many, this isn’t an easy decision to make, so it’s suggested you speak with an estate lawyer to discuss the merit of your case before taking any further steps.

Is it possible to contest a Will after probate?

If you decide to proceed, there are generally two options you can pursue, which are challenging the Will or contesting the Will. The most suitable approach will depend on the specific circumstances of your case.

In Victoria, for both of these options, an ‘eligible person’ can’t apply for further provision until there is a grant of probate or letters of administration. This is detailed under Section 99 of the Administration and Probate Act 1958.

While in some cases a person can dispute the estate once the six-month period following probate has elapsed, this rarely happens. Thus, if you’re thinking about making a claim, it’s important to act swiftly, otherwise you may not give yourself enough time to prepare.

For instance, you will need to find a suitable estate lawyer, determine the merit of your case and if you’re eligible to contest the Will under Victorian legislation, and consider whether you want to go ahead with your claim. All of this takes time, so making the most of your six month window following probate is crucial.

Understanding probate and the executor’s role

Before an estate can be administered and/or disputed, the Supreme Court must issue probate.

Probate confirms the validity of a Will. This means it’s found to be legally effective.

When a testator passes away, the executor of their Will must apply for a grant of probate as soon as reasonably possible. It’s important to note that those who are appointed as the executor of an estate have no obligation to accept this role and the duties that come with it.

During the process of probate, the executor receives a letter of administration or authority, which is the formal documentation that allows them to act on behalf of the estate. If an application for probate is successful, the authority to act out the deceased’s wishes is bestowed to the executor, who can then start to administer the estate as required.

In Victoria, there are very few plausible instances where probate isn’t required. For example though, probate may not be essential in cases where the deceased’s assets are scarce, hold little value, don’t include real estate or are jointly owned.

If the testator died intestate, which means they didn’t make a Will, then probate cannot be applied for. This is because there’s no document legally validate. In such cases, the testator’s assets form a residuary estate and a court-appointed personal representative takes on the responsibility of administering their estate.

How to contest a Will after probate

If probate has been granted and you believe you weren’t provided with adequate provision for proper maintenance and support, whether this means being unfairly excluded from mention in the Will or receiving a lesser inheritance than expected, you might be able to contest the Will.

This is also known as making a family provision claim, which is detailed under the Administration and Probate Act 1958 (VIC).

One of the first steps you’ll need to take is determining if you have grounds to contest the Will or, in other words, if you are an ‘eligible person’. In Victoria, an eligible person is usually:

  • A surviving husband or wife;
  • A surviving domestic partner or same-sex partner;
  • Children of the deceased (and in some cases, step-children and grandchildren);
  • Other people who were dependent on the deceased;
  • Those who the deceased was dependent upon.

After this, getting in touch with an estate lawyer who has extensive experience dealing with cases like your own is a great next step. They can help you not only establish whether you have sufficient grounds to contest the Will, but also if your claim against the estate has merit and is worth pursuing.

Contact our estate lawyers

At Hentys Lawyers, we have experience dealing with hundreds of estate disputes, and over 95% have settled out of court. If you think you have a claim to contest a Will, call our estate lawyers today for your free 30 minute initial consultation.

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