Being unexpectedly left out of a will is an upsetting and confusing time. However, while you may be disappointed at what you have been left by someone close to you, you may not be legally eligible to Dispute an Estate. In Victoria there are several people who may able to Dispute an Estate.
At Hentys Lawyers, we endeavour to answer all of your questions in plain English. Read on for more information on whether or not you may be eligible to Dispute an Estate in Victoria.
Under What Circumstances Can An Estate Be Disputed?
The validity of a Will may be challenged under the following circumstances:
- The testator (will maker) was not considered to have the full mental capacity to make a Will at the time that it was signed
- The Will is believed to have been made under the influence of others
- A person who the deceased had a responsibility to provide for believes that they haven’t been left a fair share of the estate
Testator’s Family Maintenance
Most Wills are challenged on the basis of Testator’s Family Maintenance. This is when someone the deceased had a responsibility to provide for believes that they haven’t been adequately provided for in the will.
In order to Dispute an Estate on the basis of Family Maintenance, the person who wants to make a claim has to be closely related to the person who died. The categories of people who can dispute an estate in Victoria include:
- A spouse or domestic partner of the deceased
- A former spouse or partner eligible to apply to court for a property settlement
- A child or stepchild, or someone treated as a child by the will maker
- A parent of the deceased
- A member of the deceased’s household
- A registered carer of the deceased
- A grandchild of the deceased who can show that they were dependent on the will maker
This was an experience that I knew would be hell, however I am truly grateful to the team at Hentys Lawyers, for without this fight I would have received nothing!Anthony Higgins
It’s important to note that simply falling into one of these categories does not automatically mean that you will have a successful Estate Dispute claim. In order to asses the claim, the court will take the following into consideration:
- The Will document(s) as well as evidence about why the Will maker made the Will as they did
- If the deceased had a ‘moral duty’ to provide for the applicant
- If the applicant was fully or partly dependent on the deceased
- Whether ‘adequate provision’ was made for the applicant. If the court decides that this was not the case, they will advise on what provision should be made
- Any physical, mental or intellectual disability of the applicant and other beneficiaries
- The nature of the relationship between the applicant and the deceased
- How changes to the Will might affect the other beneficiaries
In order to Dispute an Estate on the basis of Testator’s Family Maintenance, your claim must be lodged within six months of the grant of probate or letters of administration being made.
The team at Hentys Lawyers can give you more advice on whether you are eligible to Dispute an Estate, and ensure you lodge your claim within the defined time limits. Contact us for more information.
Our Simple 4 Step Process
One phone call is all it takes for us to confirm whether you have a reasonable claim or not
We estimate the size of your claim and present you with our ‘No Win No Fee’ plan
We’re with you every step of the way, managing the entire process on your behalf
We apply our knowledge and expertise to reach the settlement you are entitled to