Contesting a will in Victoria involves several detailed steps and understanding the legal requirements and procedures is critical. Below is an outline of the process for filing a Testators Family Maintenance Claim (TFM claim) under the Administration and Probate Act 1958.
Preliminary Steps
1. Obtain a Copy of the Will:
- Request a copy of the will from the executor or administrator.
- Eligible persons include close family members, beneficiaries of the current or previous wills, people entitled under intestacy law, and anyone with a claim against the estate.
2. Check Jurisdiction and Timing:
- Ensure the deceased was a resident of Victoria or owned real property in Victoria.
- File the TFM claim within six months of the probate grant.
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Establishing Eligibility and Grounds
3. Determine Eligibility:
- Eligible applicants typically include spouses, domestic partners, children, stepchildren, and dependents of the deceased.
4. Grounds for Claim:
- Show that the deceased had a moral responsibility to provide for the claimant and failed to do so adequately in the will.
Negotiation with the Executor
5. Notify the Executor:
- Inform the executor of the intention to file a TFM claim.
- The executor will pause the distribution of the estate to address the claim.
6. Attempt Settlement:
- Use this opportunity to negotiate a settlement with the executor.
- The executor may settle valid claims to avoid court proceedings.
Mediation Process
7. File the TFM Claim:
- If no settlement is reached, formally file the TFM claim with the Supreme Court of Victoria.
8. Pre-Trial Mediation:
- The court orders mediation before proceeding to trial.
- Parties meet with legal representation and a mediator to negotiate a settlement.
- Mediation can be face-to-face or via other arrangements, such as separate rooms with intermediaries.
9. Reach a Settlement:
- If a settlement is reached, document and sign a binding agreement.
- If no agreement is reached, the case proceeds to a court hearing.
Court Hearing
10. Prepare Affidavits:
- The claimant submits an affidavit detailing their relationship with the deceased, financial needs, and reasons for the claim.
- The executor submits a replying affidavit defending the provisions of the will.
11. Court Examination:
- The court reviews affidavits and evidence.
- Factors considered include:
- Value and nature of the estate assets
- Financial circumstances of the claimant and beneficiaries
- Moral responsibility of the deceased to the claimant
- Relationship between the claimant and the deceased
- Community expectations
12. Court Decision:
- If the court rules in favor of the claimant, it can order a redistribution of the estate.
- The court decides who bears the costs of the legal proceedings.
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Summary
Contesting a will in Victoria requires thorough preparation and understanding of legal procedures. Begin by obtaining and reviewing the will, verifying eligibility and jurisdiction, and attempting to negotiate with the executor. If negotiations fail, mediation offers a chance to settle the claim before proceeding to a court hearing where the court will consider various factors to make a final decision.
If you are considering whether you are an eligible person and wish to make a Testator’s Family Maintenance Application (AKA Part IV Application) against the estate of a deceased and/or contest a Will of a deceased, you should not hesitate to contact our office to arrange a meeting with our Wills & Estate lawyers on (03) 9311 8511 or via our ‘Enquire now’ button in the top right-hand corner.
