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How to Contest a Will and Win

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). 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.

It is important to recognise that no two Wills are the same and every case is different, therefore, there is no formula that guarantees that a person will contest a Will and win. However, there are a number of factors that influence a person’s success in contesting a Will.

Eligibility for contesting 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 eligible person is 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 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;
  • 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.

 Lodge your Will contest application within time

In order to be able to make an application to the court to contest a Will, probate must be granted. 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 that influence the strength of your Will contest

In making a family provision order, the court considers the contents of deceased’s Will, evidence of the deceased’s reasons for making the Will in the terms he/she did, and any other evidence about the deceased’s intentions with respect to you as the claimant. This includes:

The nature of the relationship between yourself and the deceased

The better a relationship is between yourself and the deceased, the better chance you have at successfully contesting their Will. In order to help prove your relationship with the deceased, try to gather evidence of birthday cards or messages, photographs, and record how often you were in contact with the deceased (by telephone, email, or in person visiting) before they passed away.

Obligations/responsibilities the deceased had to you in the past

Did the deceased ever assist you financially? If so, gather receipts and evidence of transactions that demonstrate that the deceased has helped you in the past by making financial gifts such as paying for rent, groceries, or educational expenses.

Furthermore, if you ever lived with the deceased it is important to recall the dates and period of time that you lived with them. Also note whether you assisted with paying bills or buying groceries during this time.

Your financial resources and needs

Although this is a personal topic, it is important to show that you are a person that is suffering financial hardship which would be eased by a successful claim. In demonstrating this, you will need to show the court:

  • 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.

These factors are important in establishing that the deceased has a moral duty to provide adequate provision for your proper maintenance and support. The term “adequate provision” is very subjective, therefore it is up to you to show the court your financial needs and these differ greatly from case to case. Therefore, the more evidence you have to demonstrate your financial hardship the better off you will be in making a claim.

Furthermore, it is also important for the court to consider adequate provision in relation to the size of the Estate. For example, if an Estate is worth $3 million and you only receive $20,000, this will likely lead to a more successful claim than if the Estate is worth $30,000 and you receive $20,000.

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

Ultimately, 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.

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