Changes to Challenging a Will

As of 1 January 2015, laws relating to contesting a Will in Victoria will change with amendments to Part IV of the Administration and Probate Act 1958. The new changes are far less than originally intended, however it will restrict the rights of certain categories of claimants from challenging a Will or testamentary trust. Below is an outline of the changes:

Restricting Eligibility

The Act specifies those individuals who as of 1 January 2015 will be eligible to bring a claim, being:

  • the spouse or domestic partner at the time of the deceased’s death;
  • a child of the deceased, including a stepchild or adopted child who, at the time of the deceased’s death, was under the age of 18 years; or a full-time student aged between 18 years and 25 years; or under a disability;
  • a former spouse or former domestic partner, who at the time of the deceased’s death would have been able to take proceedings under the Family Law Act 1975 and is prevented from doing so because of the death of the deceased;
  • a child or stepchild of the deceased other than one under 18 years old, a full time student between 18 and 25 years old or under a disability;
  • a registered caring partner;
  • a grandchild;
  • a spouse or domestic partner of a child of the deceased if the child of the deceased dies within one year of the deceased’s death; and
  • a member of the household of which the deceased was also a member.

Deciding Factors

Factors determining the deceased’s responsibility to provide for a claimant is currently contained in section 91(4) of the Administration and Probate Act 1958 (Vic). Such factors include:

  • the nature and length of the relationship between the parties;
  • the size and nature of the estate;
  • the character, conduct age and financial resources of the claimant; and
  • benefits previously given to the claimant.

The above factors will not change, however the Court is no longer obliged to consider such factors, as the Court may, rather than must, have regard to the criteria outlined in s91(4)(e)-(p) of the Administration and Probate Act 1958 (Vic).

Amount of Provision

In determining the amount of provision, the Court must now have regard to:

  • the degree which the deceased, at the time of their death, had a moral duty to provide for the claimant;
  • the degree to which the distribution of the deceased’s Estate fails to make adequate provision for the proper maintenance and support of the claimant;
  • (for applicants falling within (e) to (h) above) the degree to which the claimant was wholly or partly dependent on the deceased for their proper maintenance and support; and
  • (for applicants that fall within (d) above) the degree to which the claimant is not capable, by reasonable means, of providing adequately for the claimants proper maintenance and support.

Further Considerations

The Court must also have regard to the degree to which the distribution of the estate fails to make adequate provision to the deceased’s Will, including any evidence of the reasons for making the dispositions in the Will and any other evidence of the deceased’s intentions in relation to providing for the claimant. Finally, an additional criteria includes that the Court may have regard to the effect an order would have on the amounts received by other eligible persons.

Hentys Lawyers are highly experienced in acting on behalf of claimants challenging a Will or testamentary trust in both the Supreme Court of Victoria and County Court of Victoria. If you wish to dispute a Will you have been left out of or you feel that the Will doesn’t fairly provide for you, you’re now in the right place to get the information and answers you need…

Richard Cudlipp
Partner – Hentys Lawyers
Email: richard.cudlipp@hentys.com.au
Michael Harty
Solicitor – Hentys Lawyers
Email: michael.harty@hentys.com.au

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