Know your rights – who can contest Wills and Estates


by

In considering whether to contest a Will, you need to obtain sound advice on the types of claims available to you in Victoria.  They can include undue indue influence, lack of capacity, lack of provision or breach of trust.

There are generally two grounds to contesting Wills and Estates:

  1. The Will does not properly reflect the wishes of the Willmaker due to the Willmaker having lacked capacity or the Willmaker having been under the undue influence of a third party.
  2. The Will does not make adequate provision for a beneficiary.

The latter is the most common, as the law recognises that people making a Will have a duty to make provision for close family members.

In circumstances where a Willmaker fails to make provision for a close family member, then that family member may choose to make a claim under Part IV of the Administration and Probate Act 1958 (Vic) (Act) against the estate of the deceased – this is known as a Part IV Claim.

If you have been left out of somebody’s Will, or received less in a Will than you believe you are entitled to, then you may eligible to make such a claim against the estate of the deceased.

Who can contest a Will or Estate?

To make a Part IV Claim, you must establish that you are an eligible person, as defined under section 90 of the Act.

Eligible persons include, but is not limited to:

  1. The spouse or domestic partner of the deceased.
  2. A former spouse or domestic partner of the deceased.
  3. Children of the deceased, including adopted and step-children.
  4. Grandchildren of the deceased.
  5. Someone who was a member of the household of the deceased.

A Part IV Claim will generally arise when a child or spouse has not been properly provided for in the deceased’s Will, or when an eligible person suffers from a disability that requires further consideration.

What does the law say?

In assessing the merits of a Part IV Claim, the Court is obligated to consider a number of matters under section 91A of the Act.  Some of the Court’s considerations will include:

  1. If the deceased had a Will, what did it say?
  2. The size and nature of the estate.
  3. What responsibilities did the deceased have to their beneficiaries?
  4. What contributions (financial and non-financial) did a person make to the deceased during their life time.
  5. What is the financial situation of a beneficiary?
  6. The nature of a beneficiaries’ relationship with the deceased.
  7. Whether any of the beneficiaries had a special need and/or disability.

Further to the above, the Court has the discretion to consider any other matter that the Court considers relevant.

What can the Court do?  Is there a time limit?

An application to the Court for a family provision order must be made within 6 months after the date of the grant of probate of the will or of letters of administration.  However, in some cases, applications can be made after this 6-month period, if the Court deems it appropriate to do so.

If found that an eligible person has a proper basis to make an application Part IV of the Act, the Court can make an order that provision be made from the deceased’s estate, which may consist of a lump sum and/or periodical payment.

What’s next?

If you believe you are an eligible person and wish to make a 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 for an appointment with our litigation and dispute resolution team.

 

Peter Renwick

Director

E prenwick@kennedyguy.com.au

 

James Penman

Lawyer

E jpenman@kennedyguy.com.au