Contesting a Will in Victoria
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 a Part IV claim or a Testator’s Family Provision Maintenance claim (TFM).
In Australia, each state has different legislation, 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 several 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 15-minute consultation.
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’s assets, including real estate property such as land, house, and personal properties such as monies held in a bank, shares, car, etc, held in Victoria. The deceased can have interstate assets, but the majority of the assets must be in Victoria.
- An 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 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 does not wish to negotiate and settle your claim.
- County Court of Victoria
- The Family Property List provides a 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
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 is 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.
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.
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 were found to be invalid.
Preliminary Steps That You Can Do Before Seeing a Lawyer
- 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.
- If Probate has been granted – see immediately Wills & Estate Lawyers.
- If Probate has not yet been applied for, you can check the Supreme Court of Victoria website for the advertisement details of the notice of intention to issue Probate.
- 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.
Frequently Asked Questions:
In a family provision claim, the Court considers whether the deceased made adequate provision for an eligible person.
Relevant factors may include:
- The relationship between the applicant and the deceased
- The applicant’s financial needs and resources
- The size and nature of the estate
- The needs of other beneficiaries
- Any obligations the deceased had to the applicant
- Contributions made by the applicant to the deceased or the estate
Each claim is assessed on its own facts, with the Court considering what is fair and proper in the circumstances.
Yes. A person may still be able to contest a Will even if the deceased deliberately excluded them.
If the person is eligible under Victorian law, the Court may consider whether adequate provision should have been made despite the wording of the Will.
If an estate has already been distributed, a claim may become more complex. However, distribution does not always prevent a claim from proceeding.
The outcome may depend on timing, whether the executor was on notice of a potential claim, and whether the application was made within the required legal timeframe. Early action is important in estate disputes.
In some circumstances, yes. Victorian succession law recognises modern family relationships.
Stepchildren, former spouses, former domestic partners and other eligible persons may be able to bring a claim if they meet the legal criteria. The Court will consider the nature of the relationship, any dependency, and the deceased’s obligations.
Yes. Many Will disputes are resolved through negotiation or mediation before a final hearing.
Resolving a dispute early can reduce cost, delay and emotional strain. Any agreement should be properly documented and, where required, approved by the Court to ensure it is legally effective.
Legal costs may be paid from the estate in some cases, particularly where the claim has reasonable merit.
However, costs are not automatically paid by the estate. The Court may consider the conduct of the parties, the strength of the claim, settlement offers and whether costs were reasonably incurred.
Yes. The value and nature of the estate can significantly affect the outcome.
In smaller estates, there may be limited assets available after debts, expenses and competing claims are considered. In larger estates, there may be greater scope for further provision, depending on the circumstances.
Where several people make claims, the Court must balance all competing interests.
Each applicant’s financial position, relationship with the deceased and level of need will be considered. Multiple claims can make the dispute more complex, particularly where the estate is modest.
Prompt guidance is important if you believe you have not been adequately provided for, or if you are an executor responding to a claim.
Strict time limits apply to contesting a Will in Victoria. An experienced Will dispute lawyer in Melbourne can assess eligibility, explain the strength of a claim and assist with taking the appropriate steps within the required timeframe.