What is the Process of Contesting a Will in Victoria?

If you have been inadequately provided for in a Will or left out entirely, you may have the option to contest the Will by making 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.

Preliminary Stages of Contesting a Will

Administrative factors

Before making a Part IV application with the court, there are a number of administrative factors that must be satisfied. They are as follows:

1. The deceased lived in Victoria at the date of death;
2. There was real and personal property in Victoria as owned by the deceased at the date of death;
3. Probate has been granted to the executors of the will.

Eligibility to contest a will

Furthermore, before you can contest, you must be eligible to do so. Section 90 of the Administration and Probate Act 1958 (VIC) provides a definition of an ‘eligible person’ in relation to commencing a Part IV claim to be:

• The spouse or domestic partner at the time of death;
  • A domestic partner may be in a registered or un-registered relationship with the deceased at the time of death. In order to establish a relationship with the deceased at the time of death, it must be shown that the person was living with the deceased as a couple on a “genuine domestic basis” pursuant to the Relationships Act 2008. If there is no child from the relationship with the deceased who is under 18 years of age at the date of death, then the domestic partner must have been living for a continuous period of 2 years with the deceased before 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;
  • In order to satisfy this criteria, you must be in a “registered caring relationship” as defined under the Family Law Act 1975and that the relationship was with the deceased. A relationship of this nature must not be for a “fee or reward” and between two people who are not a couple or married to each other. The key issue is that the relationship must be registered.
• 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.

Consequently, siblings, parents, grandparents, aunt and uncles, or nieces and nephews cannot contest a Will unless they satisfy other eligibility criteria such as being a household member of the deceased and can prove that the deceased had a moral obligation to provide for them in their Will. For example, a nephew who was living with the deceased at the date of death and was dependent on them may still be entitled to bring a claim.

Grounds to contest a Will

Of course, it is always important before beginning the process of contesting a Will to make sure that you have grounds to contest a Will even if the other requirements are satisfied

In making an assessment of the strength of your case, the Court takes the following factors into consideration:

1. The content of the deceased’s Will;
2. Evidence of the reasoning behind the deceased’s construction of the Will;
3. Any other evidence of the deceased’s intentions with respect to you, including:
   • The nature of the relationship between yourself and the deceased;
   • Obligations/responsibilities the deceased had to you in the past;
   • Whether you or any beneficiary has a physical, mental or intellectual disability; and
   • Your character and conduct.

In addition to this, the court considers:

1. The degree to which, at the time of death, the deceased had a moral duty to provide for you. This moral duty turns upon:

• • Whether you were being maintained by the deceased before their death, and whether the deceased had assumed that responsibility. This includes but is not limited to:
    • Any financial gifts the deceased made to you, such as assisting paying for groceries, rent, or educational expenses;
    • Whether you were living with the deceased

1. • Your financial resources and needs. This includes but is not limited to:
     • 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.
   • The current and future needs of yourself, any other applicants, and beneficiaries of the estates.
   • Whether there have been any benefits previously given by the deceased to you or to any beneficiary.
   • Any other matters the Court may consider to be relevant.
2. The degree to which the distribution of the deceased’s estate fails to make adequate provision for your proper maintenance and support, including:
   • The size of the Estate and its liabilities; and
   • Any contribution you may have had to build up the estate or the welfare of the deceased/deceased’s family.

Process from initiating will contest proceedings to mediation

If it has been determined that you have grounds to contest a Will and you have been retained as a client, the process initiating proceedings begins. In the preliminary stages we ask you to sign Overarching Obligation certifications so we may file this with the Court. We also file a Proper Basis Certification, and an Originating Motion which makes the Court aware that we want to launch a proceeding.

When this application has been approved by the court, we then serve this application along with all the documents filed with the court upon the solicitors for the estate. This is to let them know you are eligible and are contesting the Will of the estate for which they are representatives.

The next step is to wait for the other side’s Notice of Appearance, which shows that they accept their role in the dispute.

When the other side’s Notice of Appearance has been received, it is then up to the parties to draft timetabling orders. This timetabling document, called Minutes of Consent Orders, lists when items such as Affidavits/Position Statement from each side will be due, a date the court-ordered mediation has to be conducted by, and a trial date in case the mediation falls through. Naturally, the complexity of the matter and the availability of the court affects when the dates are set.

After these orders have been finalised by the court, mediation is typically scheduled in three to four months’ time, with the trial is typically being set one to two months following the date mediation is due. This time frame gives both parties sufficient time to prepare their initial Affidavits/Position Statements and provides the Plaintiff a chance to draft and file their response to the Defendant’s Affidavit/Position Statement if required. It also allows us to notify all the other beneficiaries listed in the Will that proceedings are taking place and they legally entitled to defend the claim if they so choose.

When a matter settles at mediation, the Terms of Settlement are written down and signed by all parties, and this acts as a binding agreement between both sides. In these terms, dates are set for when payment of the settlement monies are due. Unfortunately, there is no set formula for these dates. This is because they depend upon the estate’s assets and take into consideration factors including whether there is property that needs to be sold or whether there are any other claims being made against the estate.

Once all the terms in the agreement have been executed and the monies have been paid, the court is advised that the matter has been settled and the proceedings should be dismissed.

If mediation fails

Should a matter not settle at mediation, the case will then progress to a court hearing before a judge where the judge will decide the merits of the case and make a determination as to your entitlement as an applicant, if any. Once the court has made its determination, the parties then conduct themselves in accordance with the court orders in relation to any costs that need to be paid or otherwise. These, of course, will differ from case to case.

However, our aim at Hentys is always to settle at mediation as it keeps the costs down and provides a much better resolution for all. We have experience dealing with hundreds of estate disputes, and over 95% have settled out of court. If you think you have a claim to contest a Will, call our estate lawyers today for your free 30 minute initial consultation.