CAN I CONTEST A WILL?
Under Victorian Law, you can legally contest a will if your deceased relative or other dependant did not provide ‘Adequate Provision for Proper Maintenance and Support’. Understanding this term is key to determining whether you are eligible to contest the will.
Once the court has determined that the deceased was responsible for providing for the applicant, it will then determine whether the assets and money assigned to the applicant adequately support their lifestyle.
‘ADEQUATE & PROPER’: THE DIFFERENCE BETWEEN TERMS
The term ‘Adequate Provision for Proper Maintenance and Support’ is an intentionally ambiguous statement, which is considered relative to each individual’s circumstance. In order to determine whether adequate provision has been made, the court will consider the terms ‘adequate’ and ‘proper’ in relation to the applicant’s situation. For example, if the child of a wealthy father has not been awarded as much as she would have expected from his estate, she may be able to contest the will. Even if the daughter has been awarded a lower sum that will ‘adequately’ cover her necessities, this amount may not be sufficient to ensure her ‘proper’ maintenance.
This is because the adequacy of the provision that has been made should not be decided in isolation but should rather be determined by considering whether the applicant has been given enough to live comfortably, in the lifestyle that they are accustomed to.
As such, the terms ‘adequate’ and ‘proper’ must be considered in the context of:
- The age, sex, condition, lifestyle and situation of the applicant
- The applicant’s needs and the resources they require for meeting those needs
- The nature, extent and character of the estate and other claims upon it
- What the will-maker regarded as superior claims or preferable dispositions
MORE ON THE APPLICANT’S NEED
When determining whether provision in a particular case is ‘adequate’ and ‘proper’, the financial need of the applicant is a central consideration. In some cases, the applicant will not receive more from the estate unless they can fully demonstrate a financial need.
High Court Justices Fullagar and Menzies in Blore v Lang famously defined ‘need’ to be ‘not for the bread and butter of life but for a little of the cheese or jam’; indicating the term ‘need’ should also be considered a relative concept, which does not simply account for the applicant’s necessities for survival.
It’s important to remember that the clause ‘Adequate Provision for Proper Maintenance and Support’ does not solely apply to young children of the deceased, who must be provided for as they grow up. Adult children who are independently wealthy may also be covered under this term as long as the deceased person was legally responsible for providing for them. Furthermore, it is not necessary that the applicant is poor or experiencing financial hardship in order to be awarded a greater share of the estate.
Contesting a will is a difficult decision. At Hentys we help you to determine whether you have a case that is worth contesting and ensure that the process is as painless and stress-free as possible. In almost all cases, contesting a will does not mean you will go to court. If you want to know more about this clause and whether you may be eligible for more of an estate than you have received, call Hentys for a confidential discussion.