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What does it mean to contest a Will?

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

So, if you feel ‘hard done by’ as a result of the deceased…these are the proceedings you would launch so to receive a share, or larger share of the deceased’s estate.

Elements of a Family Provision Claim

Step 1:  Determine that you are a part of an ‘eligible class of 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).

Eligible people include

  1. Spouse or domestic partner at the time of death;
  2. Child of the deceased (including adopted or step child, or someone who believed the deceased to be their parent and was treated as such)
  3. A registered caring partner
  4. A grandchild
  5. A person who was (and was likely to be in the near future) a member of the deceased’s household.

Step 2: Prove that the deceased had a moral duty to provide for your proper maintenance and support.[1] E.g. you were maintained by them at some point in time.

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 their proper maintenance and support.[2]

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What the courts consider…

Within your claim, the courts consider a multitude of factors to determine what would be a fair and just outcome. These considerations include, but are not limited to – the deceased’s Will, evidence of the deceased’s reasons for making the Will in the terms that he/she did, any evidence about the deceased’s relationship with the applicant, obligations/responsibilities the deceased had to the applicant, any physical or mental disability of the applicant, the applicant’s character, financial resources and needs of the applicant, the size of the estate and any contributions made by the applicant to building up the estate.

Is there a cut off?

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.

Example of a Family Provision Case

Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178

Facts: Respondent was the daughter of the deceased. Claimed that her mother failed to make sufficient provision for her in her Will as she was only receiving 20% of the Estate. At first instance court found for the respondent. The deceased’s son appealed this decision.

Decision. The appeal was dismissed, with a finding that:
(1) Deceased had a moral duty to provide for her daughter as a result of sexual assault inflicted on her, by her father during her teenage years. That is, the deceased had knowledge of the sexual abuse alleged by her daughter, but failed to act and instead supported her husband.

(2) The Will does not make adequate provision in light of the circumstances. Notably the court assessed: The substantial physical, mental and financial burdens the respondent incurred due to the impact of the sexual abuse; the fact that respondent had been a ‘dutiful’ daughter caring for her mother during her lifetime, and how the deceased repeatedly during her life time had promised that the respondent would be treated equally with her brothers – which in the final Will, she was not.

The Judge held that in such circumstances proper provision would be to maintain the deceased’s promise (so for the respondent to be treated equally with her brothers), and also to receive a further $100,000 due to the severity of the situation and its traumatic aspects.

As you can see, after balancing the relevant statutory criteria, the court decides each case on its own merits. Thus, there are no definitive rules about when a family provision claim will succeed, and how much further provision will be granted; it depends entirely on the individual circumstances of each case.

Hence, we recommend you get in contact with the team at Hentys Lawyers today so we can help you assess your claim.

 


[1] Administration and Probate Act 1958 (Vic) s 91(2)(c)
[2] Ibid s 91(2)(d)

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