Contesting a Will in Victoria

Have you been left out of a Will or not provided for enough from a deceased estate? If so, you may be eligible to contest the Will. There are varying rules across Australian states for contesting a Will. Where the deceased permanently lived, owned real estate and the date of the deceased’s death are relevant. Alphastream Lawyers can provide you with advice about the correct jurisdiction, whether you are eligible to apply to contest a will and as to the merits of your particular case. This blog will provide a brief overview of the time limits and some of the rules that apply to contesting a will in Victoria where a will maker died on or after 1 January 2015. 

To contest a will in law is known as making a “Family Provision claim” (“FP claim”) or Part IV claim. To be eligible to make an FP claim, you must be an “eligible person” under section 90 of the Administration and Probate Act 1958 (Vic).

What is the time limit to making a FP claim?

An eligible person has 6 months from the date of the grant of probate of the will to apply to Court for FP order (Section 99 of the Administration and Probate Act 1958). The Court may grant an extension of time for making an FP application (even where the 6 month time limit has expired) if it considers it appropriate, the eligible person can show that the estate will not be prejudiced by the application out of time and after considering the reasons for the delay in applying for the FP order. 

If part of the estate has already been distributed at the time of the application for an extension of time to apply for an FP order, the part of the estate already distributed cannot be disturbed or affected by any order of the Court in relation to the application for an extension of time. If the entire estate has been distributed, an application for an extension of time to apply for a FP Claim cannot be made.

The Court will not make a Family Provision order unless: – 

1. The person applying is an eligible person such as: – 
   • a spouse or domestic partner of the deceased at the time of the deceased’s death;
   • a child, step-child or adopted child of the deceased, or person who believed the deceased was their parent was treated by the deceased as a natural child, and who at the time of the deceased’s death was:
     • under 18 years of age; or
     • a full-time student between 18 years and 25 years; or 
     • suffering from a disability. 
   • a child, an adopted child, step-child or a person who believed that the deceased was their parent and was treated by the deceased as a natural child not referred to in the above category. This includes adult children. For these eligible persons, the Court will also consider the degree to which he or she is not capable by reasonable means of adequately providing for their own proper maintenance and support;
   • a former spouse or former domestic partner of the deceased who, at the time of the deceased’s death, would have been able to commence or continue proceedings under the Family Law Act 1975;
       
2. The person applying is wholly or partly dependent on the deceased for their proper maintenance and support and the person is:  
   • a registered caring partner of the deceased; 
   • a grandchild of the deceased;
   • a spouse or domestic partner of a child or step-child of the deceased where that child or step-child dies within 1 year of the deceased’s death.
     This also includes the spouse or domestic partner of a person who, for a substantial period of the life of the deceased’s, believed that the deceased was their parent and was treated by the deceased as a natural child and that person dies within 1 year of the deceased’s death.  
   • A person who, at the time of the deceased’s death, is, or had been and would have been likely in the near future to again become, a member of the same household of which the deceased was a member.
     
3. At the time of the deceased’s death, the Court considers that the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and 
   
4. The distribution of the deceased’s estate under the will fails to make adequate provision for the proper maintenance and support of the eligible person.

What factors does the Court consider when making an FP order?

The factors the Court considers when making an FP order are contained in section 91A of the Administration and Probate Act 1958 (Vic). The following factors must be considered by the Court: – 

1. the will of the deceased;
2. any evidence of the reasons that the deceased made the dispositions in their will;
3. any evidence of the intentions of the deceased in providing for the eligible person. 

The following factors may be considered by the Court: – 

1. any family or other relationship between the eligible person and the deceased including the length and nature of that relationship;
2. any obligations or responsibilities of the deceased to the eligible person, other eligible persons and to the beneficiaries in the will;
3. the size and nature of the deceased’s estate and liabilities and charges which apply to it;
4. the financial needs, earning capacity and financial resources of the eligible person, other eligible persons and any beneficiaries of the estate both at the time of the hearing and also in the foreseeable future;
5. the age of the eligible person;
6. the physical, mental or intellectual disability of any eligible person or any beneficiary of the estate;
7. any contribution of the eligible person to building up the estate or to the deceased’s or the deceased’s family’s welfare;
8. any benefits previously given to the eligible person or to any beneficiary by the deceased;
9. whether the eligible person was being maintained by the deceased prior to his/her death either wholly or partly and, if relevant, the extent and basis of this maintenance; 
10. whether any other person is liable to maintain the eligible person; 
11. the eligible persons character and conduct;
12. the effect of a FP order on the amounts received by the beneficiaries of the will; 
13. any other matter that the Court considers relevant. 

To be successful in an application for an FP order, there are many areas in which the Court must be satisfied. The above information provides a useful high-level summary, however the area of FP claims is complex and every case is unique. For comprehensive legal advice tailored to your particular case, contact Alphastream Lawyers on (03) 9548 5500.