Welcome to Hentys Lawyers, Experts in Contesting a Will

Contesting a will is the action taken when you have been left out of will, or feel you have been treated unfairly by the Testator (deceased) within their will. Therefore you launch a family provision claim. In Melbourne, Victoria, these claims are also commonly referred to as Part IV claims or Testator Family Maintenance (TFM) claims.

Pursuant to Section 50 of the Wills Act 1997 (Vic) the following persons are entitled to inspect a Will of the deceased (to enable you to then contest it):

1. any person named or referred to in the Will;
2. any person named or referred to in an earlier Will as a beneficiary
3. spouse at the date of death;
4. domestic partner of the deceased;
5. parent, guardian or children of the deceased;
6. any person who would be entitled to a share if the deceased died intestate (without a Will)
7. any parent of a minor referred to in the Will or who would be entitled to a share if the deceased died intestate;
8. any creditor or person who has a claim against the estate and produced evidence of that claim.

However, not every one of the aforementioned has the right to make a family provision claim against the deceased’s Estate (and therefore contest the Will).

There are a number of situations that may give you the right to contest a will.

Only a limited number of people and entities involved in the life of the deceased can legally file to challenge the validity of a last will and testament. In legal terms this is referred to as an “eligible person”. In order to qualify as an ‘eligible person’, the involved party must be personally affected by the outcome of the case.

In Victoria, the category of people who can contest a will is broad and can include:

• 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.

In your initial consultation, your lawyer will detail the general merits of the case. If they consider that the claim does not have merit, they will let you know straight away so that you can make your own decision about whether to proceed.

If you do decide to pursue the claim, you will be provided with an initial estimate of legal costs in accordance with legislation.

If you are considering contesting a will, it’s important to remember that each case is subject to a court appointed mediation. In the last 5 years, Hentys Lawyers have not experienced a single estate dispute claim that has proceeded to a trial.

Even though the law recognises a person’s right to choose who will inherit his or her property, there are often very good reasons why a person should be contesting a will. Whatever your reasons may be, Hentys Lawyers will represent you throughout the process, providing you the information and answers you need.

A Family Provision Claim in VIC, NSW and QLD is an application to the Court to seek adequate provision from the Estate of a deceased person.

These types of claims are commonly referred to as Part IV claims, Testator Family Maintenance (TFM) claims or ‘contesting a will’. These orders may be made in either the Supreme or Country Courts, where the Court is satisfied that:

1. the claimant is an eligible person; and
2. the deceased had a moral duty to provide from that person’s maintenance and support; and
3. the distribution of the deceased’s estate as set out in the Will, or pursuant to the rules of intestacy, fails to make adequate provision for their proper maintenance and support.

If you think the deceased has not adequately provided for you, the following are the proceedings you would launch.

Step 1: Determine that you are an ‘eligible person’ to launch a family provision claim. This is an exhaustive list and is provided for in s 91(2)(b) of the Administration and Probate Act 1958 (Vic).

Step 2: Prove that the deceased had a moral duty to provide for your proper maintenance and support. For example you were maintained by them at some point in time. (Note: To launch a proceeding under the Administration and Probate Act 1958 (Vic), the maintenance does not have had to occur in Melbourne, Victoria or even anywhere in Australia).

Step 3: Prove that the distribution of the deceased’s estate as set out in the Will, or pursuant to the rules of intestacy, fails to make adequate provision for your proper maintenance and support.

Up until the legislative reforms, which came into effect on the 1^st of January 2015, Victoria was one of the most flexible States in Australia for people making a claim against a Will. The eligible people were not specified, so anyone who believed that the deceased person had an obligation to provide them with some maintenance could make a claim.

At current, the new legislation provides the application for a family provision order may only be made by, or on behalf of an eligible person as defined as:

• The spouse or domestic partner at the time of death;
• A child of the deceased (including an adopted or step-child or someone who believed the deceased to be their parent and was treated as such) who, at the time of death, was:
  • Under the age of 18;
  • A full-time student under the age of 25;
  • Suffering from a disability
• A former spouse or former domestic partner of the deceased, if the person at the time of the deceased’s death would have been able to make proceedings under the Family Law Act 1975 of the Commonwealth; and has either
  • Not taken those proceedings; or
  • Commenced but not finalised those proceedings because of the death of the deceased
• A child or stepchild of the deceased not referred to above (ie adult children)
• A registered caring partner;
• A grandchild;
• The spouse or domestic partner of a child (ie son or daughter in law) of the deceased where that child has died within one year of the deceased’s death;
• A person who was or had been (and was likely to be in the near future) a member of the deceased’s household.

In Melbourne, Victoria you have strictly 6 months from the date that a grant of Probate is made to contest a will. The law can be harsh in the sense that often ‘out of time’ is synonymous with being ‘out of luck’ – although in some exceptional circumstances an extension of time will be granted. After hearing from the parties affected the court may extend the time limit as it thinks necessary. Importantly, the applicant for extension cannot be made after the final distribution of the Estate, as no distribution of any part of the Estate made prior to the applicant can be disturbed by reason of the applicant or of any order made thereon. The safest bet is to contest before the 6 month period is up.

We know that the first step can be the hardest. However, if you think that you are entitled to more from a will or Melbourne based Estate, considering the time constraints, it is important to get in touch with Hentys Lawyers as soon as possible.

Based in the heart of Melbourne, we are easily accessible, making our free initial consultation just that much more convenient. Ultimately, at Hentys, we are committed to delivering the best solutions to each of our clients and look forward to achieving the best possible outcome for you and your family.

In making a family provision order, the Court considers

1. The deceased’s Will;
2. Evidence of the deceased’s reasons for making the Will in the terms he/she did;
3. Any other evidence about the deceased’s intentions with respect to the claimant including:
   • Family relationship between deceased and the applicant;
   • obligations/responsibilities the deceased had to the applicant in the past;
   • any physical, mental or intellectual disability of any applicant or beneficiary;
   • the character/conduct of the applicant

Also, in determining the amount of provision to be made by a family provision order, the Court considers:

1. The degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person:
   • So whether the applicant was being maintained by the deceased person before that person’s death, and whether the deceased had assumed that responsibility;
   • the financial resources and financial needs of the applicant;
   • the age of the applicant
2. The degree to which the distribution of the decease’s estate fails to make adequate provision for the proper maintenance and support including;
   • the size of the Estate and liabilities;
   • any contribution of the applicant to building up the estate or the welfare of the deceased/deceased’s family

If you are not eligible to contest a will under the circumstances mentioned above, you may still be in a position to challenge the will or bring another type of Will Dispute to the table.

Each Australian State and Territory has its own laws regarding contesting Wills. While the situations under which a will can be contested are similar across the nation, you may be able to contest a Will in Victoria under the following circumstances:

• you were dependent on the deceased
• your share of the estate is not adequate for your maintenance and support
• your relationship with the deceased only began after the last Will was made
• the Will does not provide for the partner or children in another marriage or de facto relationship
• you believe that the Will is grossly unfair
• we can show that the Will maker was not in a sound state of mind when they made a Will
• we can show that the Will maker was unduly influenced by one or more of the beneficiaries, or
• the Will is unclear.

Contesting a Will refers to the making of a ‘family provision claim’. It is an application to the Court to seek adequate provision from the Estate of a deceased person. I.e. you feel as if you have not been adequately provided for by the deceased, so you want to contest his or her wishes.

In Pontifical Society for the Propagation of the Faith v Scales Dixon CJ noted the relative nature of the words. Thus there is no set criteria for what is considered adequate and what is not.

‘Adequate’ and ‘proper ’in particular must be considered as words, which must always be relative. The ‘proper’ maintenance and support of a person making a claim on an estate is relative to that person’s circumstances such as their age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to their needs but also their own capacity and resources for meeting them.

According to the Family Provision Act anyone of the following may be able to claim for greater provision of an estate:

• Spouse
• Children
• De Facto Partner
• Parents

In unique cases it is possible for step-children, grandchildren, former spouse and former de facto partners to apply to contest a will.