If an eligible person has been left without adequate provision from a deceased estate, they may be able to contest the deceased’s Will. The claim is known as PartIV claim or Testators Family Provision Maintenance claim (TFM).

In Australia, each state has different legislations, regulations and requirements to contest a Will. This also includes different time limits and eligibility.

Grounds for Contesting a Will in Victoria, if:

  • You are an eligible person;
  • You believe that you have been left without adequate provision; and
  • The deceased left a Valid Will.

The court considers a number of factors when ascertaining whether an estate has made adequate provision. If you want to know whether you will be eligible or not, contact us for a FREE 20-minute consultation.

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1. How to contest a Will in Victoria?

In Victoria, a person with an interest in a deceased estate can contest a Will, if

  • The deceased was domiciled (reside or be based) in Victoria as at the date of the death.
  • The deceased assets including real estate property such as land, house and personal properties such as monies held in bank, shares, car, etc held in Victoria. The deceased can have interstate assets but the majority of the assets must be in Victoria.
  • Eligible person for example including but not limited to spouse or domestic partner or child or stepchild.
  • The claim is made within 6 months of the date on which the probate was granted.

If it’s required to make a claim outside of 6 months, you need to seek leave from the court.

Our lawyers will talk to you about your particular matter and circumstances and then assess whether there is a possibility of settling your claim without engaging in protracted legal proceedings (lasting for a long time, or made to continue longer than necessary). Alternatively, we can issue court proceedings on your behalf if other beneficiaries or the executor do not wish to negotiate and settle your claim.

2. Which Court Deals with Contesting a Will in Victoria?

  • County Court of Victoria
  • The Family Property List provides cost-effective and fast resolution of claims for the testator’s family maintenance
  • Supreme Court of Victoria
  • Testator Family Maintenance List deals with Part IV Claims

3. Who is Entitled to View a Will?

Section 50 of the Wills Act 1997 (Vic) suggests the list of persons who can inspect and make a copy of the Will.

If you have possession or control of a will, a revoked will, or a purported will of a deceased person, you are required to allow the following individuals to inspect and make copies (at their own expense):

  • Anyone named or mentioned in the will, regardless of whether they are a beneficiary.
  • Anyone named or mentioned as a beneficiary in any earlier will.
  • The spouse of the deceased at the time of their death.
  • The domestic partner of the deceased.
  • Any parent, guardian, or child of the deceased.
  • Anyone entitled to a share of the estate if the deceased had died without a will (intestate).
  • Any parent or guardian of a minor mentioned in the will or who would inherit if the deceased had died intestate.
  • Any creditor or person with a legal or equitable claim against the estate who can provide evidence of that claim.

4. Who Will be Responsible for Your Legal Costs of the Court proceedings?

You are generally responsible for covering your own legal expenses.

In some circumstances, both parties agree that their legal costs will be paid from the estate if the dispute is resolved through mediation or pre-trial negotiations.

If the Court determines that a claim is frivolous or vexatious, your application may be dismissed and may order you to pay the legal costs of all involved parties, based on the County Court or Supreme Court Scale Rates.

The cost of pursuing a claim can vary significantly depending on the number of parties involved and the complexity of the issues. Since each case is unique, clients should be aware that costs can escalate considerably if the matter proceeds to trial. For this reason, it is often in everyone’s best interest to resolve the dispute promptly to avoid increasing legal expenses.

Challenging Will in Victoria

In Victoria, a person with an interest in a deceased estate can challenge the validity of the deceased’s Will if the circumstances demonstrate that when the Will was made, the deceased lacked capacity or was under undue influence, pressure, or duress to make the Will against their own wishes, or if the deceased had lost their testamentary capacity due to factors such as memory loss, or if the Will was forged.

Who can challenge a Will in Victoria?

A person may challenge a Will in Victoria if they are:

  • a beneficiary under a previous Will;
  • a relative who would receive a share in the estate if the deceased person died intestate;
  • a person who has a relevant interest in the deceased’s estate which will be otherwise affected by the Grant;
  • a person who would otherwise receive a share of the estate if the will was found to be invalid.

Time Limits for Challenging a Will – in Victoria, a challenge to the validity of a Will must be initiated by lodgement of a caveat prior to probate being applied for by the executor or within Six (6) months from the date of Probate being granted by the Supreme Court of Victoria.

Preliminary Steps That You Can Do Before Seeing a lawyer

  1. Visit the Supreme Court website – Probate Office Applications Index, and enter the deceased’s last name and year of death or date of death to see if probate has been granted for the deceased’s estate.
  2. If Probate has been granted – see immediately Wills & Estate Lawyers.
  3. If Probate has not yet been applied, you can check the Supreme Court of Victoria website for the advertisement details of the notice of intention to issue Probate.
  4. If you locate the advertisement, lodge a caveat if required. A caveat is a warning placed on a Court file that prevents the Court from granting probate or administration.

Note: filing a caveat could result in legal costs being ordered against the caveator. If you are considering filing a caveat, seek legal advice immediately.

If you’re considering a challenge to a Will, please contact Shan Lawyers Now! Email [email protected] or call 03 8589 2762.