Will Contesting Dictionary: 9 Terms You Should Know

  1. Contesting a Will: Contesting a Will refers to the making of a ‘Family Provision’, Part IV or ‘Testators Family Maintenance List’ claim. It is an application to the Court to seek further adequate provision from the Estate of a deceased person.
  2. Assets: A deceased’s assets are anything they own at their date of death. However, not every asset can be disposed of within a Will. As a broad rule of thumb – assets which can be disposed of via a Will (estate assets) include anything the deceased has sole ownership over, such as; real or personal property, business ownership, digital assets and intellectual property. Assets which cannot be disposed of via a Will (non-estate assets) are things that the deceased does not have legal ownership over, or has joint ownership with another party. Examples of such include discretionary/family trusts, company assets, life insurance and superannuation.
  3. Executor/Executrix: An executor (male), executrix (female) is the person named in a Will who is to carry out the wishes of the deceased after they have passed. It is a large responsibility, and if the Will is challenged or contested it is the job of the executor to defend the Will.
  4. Beneficiary: A beneficiary in a Will is someone/something who/which has been listed in a Will to ‘benefit’ from the deceased’s estate. For an example, the deceased may have left real property, cash or a family heirloom to one or multiple individuals or organisations, making them a beneficiary.
  5. Probate: Probate means proof of the Will. Once the Will has been proven to the satisfaction of the Court – that is, the Supreme Court (Probate Division) agrees that it is the last valid Will of the deceased, probate is granted to the executor of the Will. It authorises the executor to administer the Estate. The executor’s duties include paying debts of the estate, releasing assets and distributing those assets to the beneficiaries. A will cannot be contested until probate has been granted.
  6. Caveat: The word caveat comes from the Latin and literally means ‘let him beware’. Thus broadly, a caveat is classified as a legal notice to a court or public officer to suspend a certain proceeding until the notifier is given a hearing. In a Will dispute, a probate caveat is a document that is filed in court to prevent probate of the Will being granted because the plaintiffs want to challenge the validity of the Will. After a probate caveat is filed, the proposed executors of the estate cannot administer the assets until (1) it has been decided by the Court that the proposed Will is the last valid Will of the deceased, and the challenge is quashed (2) the caveat has run out or (3) it has been withdrawn by the caveator.
  7. Intestacy: Intestacy occurs if there is no Will, or an earlier Will has been revoked without a new one being made. The deceased is said to have died ‘intestate’. In such circumstances, the Estate will pass to the next of kin in accordance with statutory order as directed by the Administration and Probate Act 1958 (Vic). Intestacy can come in two forms – total intestacy or partial intestacy. In the latter form, although a Will may exist detailing the distribution of part of the deceased’s estate, the remainder has been left in a sort of limbo and therefore needs to be distributed in accordance with the statutory order.
  8. Letters of Administration: Letters of administration is intestacy’s version of probate. The Supreme Court will make a Grant of Administration and appoint an administrator to dispose of the deceased’s assets, just as an executor would once probate has been granted. To apply for letters of administration, the person must be the deceased’s closest next of kin in the following order: Lawful spouse or domestic partner, children (excluded step children), grandchildren, parents, siblings.
  9. Mediation: Mediation is a confidential meeting that takes place between two parties and is frequently used as an alternative to going to court when contesting or challenging a Will. It is a far more cost-effective way of resolving a dispute with the aim of reaching a mutually agreeable solution. It is an important term to understand if engaging with the team at Hentys Lawyers, as in the last 5 years not one of our Estate disputes has made its way to court, everything has been settled via this form of alternative dispute resolution.

For more information, see our Contesting a Will FAQs today.