Contesting a Will refers to the making of a ‘Family Provision’, ‘Testator Family Maintenance List’ or ‘Part IV’ claim. It is an application to the Court to seek adequate provision from the Estate of a deceased person.
You would launch such a proceeding if felt you had not been adequately provided for by the deceased. Such an order may be made to either the Supreme or County Court, where the Court is satisfied that:
- The claimant is an eligible person; and
- The deceased had a moral duty to provide for that person’s maintenance and support; and
- 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.
Victoria used to be one of the most flexible states in Australia for making a claim against a Will, as those eligible to contest a Will were not specified.
However, since the legislative reforms effective from January 1st 2015, those who are eligible to dispute a Will are listed in Section 91 of the Administration and Probate Act 1958 (Vic). Anybody who falls out of the scope of this section; notably siblings, cousins and general carers do not have a right to contest.
If the deceased person died on or after 1 January 2015, in a nutshell only the following people are eligible to make a claim:
- Spouse or domestic partner (registered or unregistered) at the time of death;
- Child of the deceased (including 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; or
- Suffering from a disability
- Adult children
- A registered caring partner
- A grandchild
- A person who was (and was likely to be in the near future) a member of the deceased’s household.
This blog will explore case studies of a domestic partner, step-child, adult child and grandchild.
The domestic partner of the deceased does not have to be registered, but for a relationship to be qualified as de facto, the unregistered domestic partner must have been living with the deceased as a couple on a genuine domestic basis at the time of death, and if there is no child of the relationship under 18 at the date of death, there must have been 2 years of continuous living together.
However, the Court will always take into consideration a multitude of different factors and just because eligibility per the statute is either fulfilled or not/only partly fulfilled, it does not automatically allow or bar a claim
The extra factors assessed include the relationship between the claimant and the deceased, competing interests of others, the conduct of the eligible before and during the litigation process, the financial position of the applicant and the size of the Estate.
Case Study – Estrella v McDonald  VSC 62
The applicant claimed he was in a secret same-sex domestic relationship with the deceased for approximately 23 years. 11 of those years they lived together. The deceased’s Will made no provision for the applicant who was a 51 year old housekeeping manager with a current income of $3920 per month, and expenditure of $3731 per month. In comparison, the deceased’s estate was worth $2.5 million.
The court awarded the applicant a legacy of $300,000 from his late partner’s estate, holding that while the applicant was not in a domestic relationship with the deceased at the time of death, he had been in the past for a substantial period of time and evidence established that they intended to resume the relationship if it had not have been for the deceased’s death.
As a result, after considering the nature of relationship between the applicant and the deceased, the applicant’s personal circumstances, the respondents’ personal circumstances and probability of whether continuing resumption of cohabitation would have occurred, the court found that the deceased had a responsibility to make provision for the man, but failed to do so and thus awarded the further provision.
Before the legislative change, it was difficult for step-children to apply for further provision from the estate of their step-parent in the same manner that biological children could. The case of Bail v Scott Mackenzie  then elaborated on this change, holding that the death of a natural parent does not bar a step-child’s claim, so long as the relationship of the natural parent and step-parent is undissolved at the time of the death of the natural parent. The case of Smith v Thwaites took it one step further, demonstrating that a child no longer needed to be maintained by the deceased or have lived with him/her to be considered eligible.
Case Study – Re Williams; Smith v Thwaites  VSC 365
The deceased died and was survived by three natural children and three step-children, one of whom was the plaintiff. The plaintiff’s father had pre-deceased the plaintiff’s step-mother and had left the entirety of his estate to her as it was small.
In the Will, the deceased left a quarter share of the residue of her 1.4 million-dollar Estate to the plaintiff, which came to $38, 756. The balance was left to the deceased’s three children. The plaintiff was after further provision, ideally a quarter share of the entire Estate.
The plaintiff never lived with her step-mother and was never maintained by her. Despite this, the court held that the plaintiff was entitled to further provision. This was mainly because the amount bequeathed by the deceased would not have been adequate for the plaintiff’s proper maintenance and support in light of her financial resources.
Hence, the deceased had a moral duty to provide for her step-child and the court awarded the plaintiff an extra $100,000.
In order to be successful, adult children also have to prove that they are not capable of providing adequately for their own maintenance and support, creating a moral obligation of the deceased.
Case study – Baxter v Baxter  VSC 377
The applicant, aged 64, sought further provision from the estate of his deceased father. The deceased had left a legacy of $50,000 for the applicant in his Will. However, the applicant sought an increased amount of $400,000 for future financial security.
The applicant’s financial position and health had deteriorated since the deceased’s death, and the superannuation he was dependent on for income would be exhausted in 25 years time.
Mc MIllan J found that the $50,000 was an inadequate sum for the applicant’s proper maintenance and support. This being that ultimately, the applicant’s current financial situation provided no financial buffer against future financial contingencies, which created a moral obligation of the applicant’s parent to provide.
As a result, the court held that the applicant should be allowed $350,000, inclusive of his legacy under the Will.
In order to be successful, a grandchild must also prove that they were dependent on the deceased at some stage throughout their lifetime; the longer and more substantial the period, the better the chances of success. This element can be demonstrated by the case of Missen v Missen.
Case Study – Missen (A Minor by His Litigation Guardian Moleta) v Missen  VSC 539
The applicant sought orders for provision of proper maintenance and support in the form of one half of the net estate of the deceased. The applicant’s father (deceased’s son) had pre-deceased the grandfather and the counsel for the minor argued that because of this, the applicant had been denied the ongoing financial support that would normally have been provided for by a father.
Additionally, the applicant’s mother was terminally ill and it was unknown whether she could continue to financially support him.
However, the court found that the grandfather did not owe the applicant a moral duty to make further provision for the applicant at his time of death. This being that not only were there sufficient funds available to finance the remaining period of schooling and provide the applicant with a good start to his life (he was financially stable), but the applicant was never actually dependent upon the deceased at any stage of his life. As a result, the judge held that it would “offend community standards” if he was to grant any sort of provision from the deceased’s estate.