Thinking of contesting a Will? What you should know.
Updated: Jun 4, 2021
Written by Gabriella Ferraro
Edited by Nanki Kaur
A valid Will is incredibly important. We often recommend that clients review and update their Wills every few years to ensure that a Will accurately reflects their wishes.
In some instances, a person may pass away and there is dispute about their Will. Disputes can arise for a number of reasons. Some of which include –
1. the Will may have been drafted when the deceased was not of sound mind;
2. the Will unfairly favours one person over another; or
3. an “eligible person” is in need however he or she has been excluded from the Will.
Step 1: request a copy of the Will
If you need to obtain a copy of a Will, you should contact the executor or the solicitor acting on behalf of the estate. There is a list of people entitled to a copy of the Will under s50 of the Wills Act 1997 (Vic).
Step 2: determine whether you an eligible person.
Does your relation to the deceased fall under the definition of an “eligible person” in the Administration and Probate Act 1958? An eligible person does not just include spouses, domestic partners, children of the deceased, grandchildren etc. It is important to refer to the list to determine whether you meet the first criteria.
Step 3: time limit
In Victoria, a person has six months from the date probate is granted to executor(s) or administrator(s) of a deceased estate to contest the Will according to s 99 of the Administration and Probate Act 1958. In the event that an application is made after the allowed six-month period, an application must be made to the Supreme Court for approval to make a claim.
What does the Court consider when making a claim?
The Court will consider:
The deceased’s Will, if any;
Any evidence of the deceased’s reasons for making the dispositions in the Will; and
Any other evidence in relation to providing for the eligible person.
The Court may also consider:
Any family or other relationship between the eligible person and the deceased; including the nature of the relationship and the length of the relationship;
Any obligations or responsibilities of the deceased to the eligible person;
The size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject;
The financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of the eligible person;
Any physical, mental or intellectual disability of the eligible person;
The age of the eligible person;
Any contribution of the eligible person to building up the deceased’s estate;
Any benefits previously given by the deceased to any eligible person;
The liability of any other person to maintain the eligible person;
The character and conduct of the eligible person;
The effects a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries; and
Any other matter that the court considers relevant.
These factors also assist the court in determining the extent of any provision made to the claimant.
The information provided in this article is general advice only. Given that each situation is unique, we recommend that you contact our office if you are considering contesting a Will. You can contact our Estates team on (03) 9311 8911.