Do I have Grounds for Contesting a Will?

In Victoria, if you have been inadequately provided for in a Will or left out entirely, you may have the option to make a Family Provision claim, otherwise known as a Part IV or a Testator’s Family Maintenance List claim under the Administration and Probate Act 1958 (VIC). In essence, this is an application made to the court to seek further provision from the Estate of the deceased because you feel as though the deceased has failed to provide you with sufficient maintenance and support. However, there are a number of factors that are taken into consideration in order to determine whether or not you have grounds to contest a Will.

For expert assistance in assessing the merit and grounds of your case, Hentys Lawyers can help. We’re experienced in Will contesting cases, and can provide you with the advice required to decide whether your claim is viable in court.

Eligibility to contest a Will

First and foremost, you must be an eligible person under section 90 of the Administration Probate Act 1958 (VIC) to be able to contest the will of the deceased. Under this legislation, an application for a family provision order may only be may by, or on behalf of an eligible person defined as:

• The spouse or domestic partner at the time of death;
  • A domestic partner may be in a registered or un-registered relationship with the deceased at the time of death. In order to establish a relationship with the deceased at the time of death, it must be shown that the person was living with the deceased as a couple on a “genuine domestic basis” pursuant to the Relationships Act 2008. If there is no child from the relationship with the deceased who is under 18 years of age at the date of death, then the domestic partner must have been living for a continuous period of 2 years with the deceased before 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 child or step-child of the deceased not referred to above (i.e. an adult child);
• 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 registered caring partner;
  • In order to satisfy this criteria, you must be in a “registered caring relationship” as defined under the Family Law Act 1975and 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.
• A grandchild;
• The spouse or domestic partner of a child (i.e. son or daughter-in-law) of the deceased where that child has died within one year of the deceased death;
• A person who was or has been (and was likely to be in the near future a member of the deceased’s household.

Consequently, siblings, parents, grandparents, aunt and uncles, or nieces and nephews cannot contest a Will unless they satisfy other eligibility criteria such as being a household member of the deceased and can prove that the deceased had a moral obligation to provide for them in their Will. For example, a nephew who was living with the deceased at the date of death and was dependent on them may still be entitled to bring a claim.

However, once you can establish that you are an eligible person and can contest the deceased individual’s will by making a dependency claim, it is then, of course, essential to ensure that your claim is one of merit and is made within the correct timeframe. Being an eligible person doesn’t guarantee that you will have a strong case, there are numerous factors that the court will also need to take into consideration when reaching a final decision.

Time frame for contesting a Will

In order to be able to make an application to the court to contest a Will, probate must be granted. Probate is the legal process required to allow an executor to administer a person’s estate and distribute it to beneficiaries. Essentially, it is a court-issued document confirming the validity of the deceased’s Will and appointment of the executor. Probate also contains a copy of the deceased’s death certificate, their last Will, and an Inventory of Assets and Liabilities which outlines the how much the estate is worth.

Probate is a matter of public record and anybody can request to view the documents with the Supreme Court of Victoria, currently for a fee of $37.50.

Once probate has been granted, pursuant to s 99 of the Administration Probate Act 1958 (VIC) you have strictly 6 months to make an application to contest the Will. Unfortunately the law is quite rigid in this regard and often ‘out of time’ is synonymous with being out of luck. However, in some exceptional circumstances an extension of time can be granted so long as there has been no distribution of any part of the Estate prior to the application.

Therefore, it is instrumental that you make your application before the 6 months expires!

Factors the court considers in a Will contest case

When such a claim is made to the Court, the Court will take the following factors into consideration to decide whether or not the claim will be successful:

1. The content of the deceased’s Will;
2. Evidence of the reasoning behind the deceased’s construction of the Will;
3. Any other evidence of the deceased’s intentions with respect to you, including:
   • The nature of the relationship between yourself and the deceased;
   • Obligations/responsibilities the deceased had to you in the past;
   • Whether you or any beneficiary has a physical, mental or intellectual disability; and
   • Your character and conduct.

In addition to this, the court considers:

1. The degree to which, at the time of death, the deceased had a moral duty to provide for you. This moral duty turns upon:
   • Whether you were being maintained by the deceased before their death, and whether the deceased had assumed that responsibility. This includes but is not limited to:
     • Any financial gifts the deceased made to you, such as assisting paying for groceries, rent, or educational expenses;
     • Whether you were living with the deceased
   • Your financial resources and needs. This includes but is not limited to:
     • What assets you have in your name, such as whether you own your house, how much savings and superannuation you have;
     • Whether you have any outstanding debt, such as mortgages and credit card repayments;
     • Whether you have any dependent children;
     • Your ability to earn income; and
     • Your current health and medical requirements.

1. • The current and future needs of yourself, any other applicants, and beneficiaries of the estates.
   • Whether there have been any benefits previously given by the deceased to you or to any beneficiary.
   • Any other matters the Court may consider to be relevant.

2. The degree to which the distribution of the deceased’s estate fails to make adequate provision for your proper maintenance and support, including:
   • The size of the Estate and its liabilities; and
   • Any contribution you may have had to build up the estate or the welfare of the deceased/deceased’s family.

The term “adequate provision” is very subjective. Indeed, in Pontifical Society for the Propagation of the Faith v Scales, Dixon CJ noted the relative nature of the words.

‘Adequate’ and ‘proper’ in particular must be considered as words which must always be relative. The ‘proper’ maintenance and support of a [person] claiming a statutory provision must be relative to his 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.

Therefore, there is no set criteria for what is considered adequate provision as the needs of a person is determined by independent surrounding circumstances and differs greatly from case to case. For example, a millionaire with three houses may not be successful in contesting an estate worth $300,000, however, a person who is reliant on government support and is renting their home may be successful in contesting an estate worth the same amount.

How can I know whether my Will contest claim would be successful?

Each case is determined on its own accord so therefore it can be difficult to predict the relative success of a case at trial. However, with over 25 years of handling Will disputes if you enquire with Hentys Lawyers we will be able to confirm whether you have a reasonable claim to make against an estate.