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Contesting a Will

It is the stuff of movies - and also of life. Contesting a Will is a dramatic step, involving as it usually does several family members, high stakes and even higher emotions. Hence such a story also usually makes for excellent cinema. In reality though, there are no guarantees of a happy Hollywood ending.

So what does it mean to contest a Will? Basically, when a person makes their Will they are providing (hopefully) clear instructions as to the distribution of their estate, but people being people, sometimes these distributions don’t quite match the recipient’s expectations. Or more so, someone expected to be a recipient but discovers they are not. That someone may then decide that this is not a fair result and decide to challenge - or contest - the Will.

In these circumstances it may be appropriate for the Court to determine that someone other than the beneficiaries stated in the Will, is entitled to a share (or greater share if they are already named in the Will) of the estate. A person seeking such provision (or further provision) from a deceased estate makes a claim to the Court known as a Testator’s Family Maintenance Claim, also known as a Part IV claim.

The law has however recently changed regarding such claims in Victoria - essentially narrowing the field of people who are eligible to make a claim for provision from a deceased estate.

Previously, Part IV of the Administration and Probate Act 1958 (Vic) (APA)allowed any person to make application to the Court for provision (or further provision) from a deceased Estate, if they could show the deceased had a responsibility to provide for their proper maintenance and support. The Court looked at a number of factors to determine whether the deceased did in fact have such a responsibility and then considered whether adequate provision was in fact made.

However, the Justice Legislation Amendment (Succession and Surrogacy) Act 2014,which came into operation on 1 January 2015, made a number of changes to Part IV of the APA, including specifying the type of person eligible to make a claim.

So now, you can contest a Will in Victoria only if you are one of the following:-

  • a spouse or domestic partner of the deceased at the time of the deceased's death;
  • a child of the deceased (including an adopted or stepchild) who, at the time of the deceased's death, was under the age of 18 years, a full-time student aged between 18 and 25 years or under a disability;
  • a child or stepchild of the deceased other than one under the age of 18, a full-time student aged between 18 and 25 years or under a disability at the time of the deceased’s death;
  • a person who, for a substantial period during the deceased's life, believed that the deceased was his or her parent and was treated by the deceased as his or her natural child and who, at the time of the deceased’s death, was under the age of 18, a full time student aged between 18 and 25 years or under a disability.
  • a person who, for a substantial period during the deceased's life, believed that the deceased was his or her parent and was treated by the deceased as his or her natural child, other than one under the age of 18, a full time student aged between 18 and 25 years or under a disability, at the time of the deceased’s death.
  • a former spouse or domestic partner of the deceased who, at the time of the deceased’s death would have been able to take proceedings under the Family Law Act 1975 and is now prevented from taking or finalising those proceedings because of the death of the deceased.
  • a registered caring partner of the deceased;
  • a grandchild of the deceased;
  • a spouse or domestic partner of a child of the deceased (if the child dies within one year of the deceased's death); and
  • a member of the household of which the deceased was also a member (or a person who had in the past been such a member of the household and would likely have been in the near future if the deceased had not died)

If you believe you have been left out of - or dealt with unfairly under - a Will, or if you are the Executor of an estate which is the subject of a “Part IV” claim, please call us to discuss what is happening. It is a difficult and often emotional time and you will need professional and experienced support. Call or email for a complementary appointment - we’d be only too happy to help.

Alphastream Lawyers