Contesting a Will refers to the making of a ‘family provision claim’. It is an application to the Court to seek adequate provision from the Estate of a deceased person. I.e. you feel as if you have not been adequately provided for by the deceased, so you want to contest his or her wishes.

Obtaining a copy of the Will

Pursuant to Section 50 of the Wills Act 1997 (Vic) the following persons are entitled to inspect a Will of the deceased (to enable you to then contest it)

1. any person named or referred to in the Will;
2. any person named or referred to in an earlier Will as a beneficiary
3. spouse at the date of death;
4. domestic partner of the deceased;
5. parent, guardian or children of the deceased;
6. any person who would be entitled to a share if the deceased died intestate (without a Will)
7. any parent of a minor referred to in the Will or who would be entitled to a share if the deceased died intestate;
8. any creditor or person who has a claim against the estate and produced evidence of that claim.

…However, not every one of the aforementioned has the right to make a family provision claim against the deceased’s Estate (and therefore contest the Will)

Eligibility to contest a Will in Victoria

Pursuant to Section 91 of the Administration and Probate Act 1958 (Vic) in a nutshell only the following are eligible:

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.

Evidence the Court takes into consideration in a Will contest

In making a family provision order, the Court considers

1. The deceased’s Will;
2. Evidence of the deceased’s reasons for making the Will in the terms he/she did;
3. Any other evidence about the deceased’s intentions with respect to the claimant including:
   • Family relationship between deceased and the applicant;
   • obligations/responsibilities the deceased had to the applicant in the past;
   • any physical, mental or intellectual disability of any applicant or beneficiary;
   • the character/conduct of the applicant

Also, in determining the amount of provision to be made by a family provision order, the Court considers:[1]

1. The degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person:
   • So whether the applicant was being maintained by the deceased person before that person’s death, and whether the deceased had assumed that responsibility;
   • the financial resources and financial needs of the applicant;
   • the age of the applicant
2. The degree to which the distribution of the decease’s estate fails to make adequate provision for the proper maintenance and support including;
   • the size of the Estate and liabilities;
   • any contribution of the applicant to building up the estate or the welfare of the deceased/deceased’s family

Time limit to contest a Will

Pursuant to the Administration and Probate Act 1958 (Vic) s 99 you have 6 months from the date of the grant of Probate or Administration to contest the Will.

However, after hearing from the parties affected the court may extend the time limit as it thinks necessary. Importantly, the applicant for extension cannot be made after the final distribution of the Estate, as no distribution of any part of the Estate made prior to the applicant can be disturbed by reason of the applicant or of any order made thereon.

The safest bet is just to contest before the 6 month period is up!

How to start?

The best time to contest the Will is as soon as you have seen it and feel inadequately provided for. This is because Estate funds can sometimes be sold, transferred or spent and you may end up having no assets or funds to claim upon!

To do this, contact the team at Hentys Lawyers today and we can offer assistance. We will talk to you about your case and depending upon your wishes, immediately attempt to settle your claim before any court action is considered.

[1] Administration and Probate Act 1958 (Vic) s 91(4)