Disputing an Estate or Contesting a Will – what you need to know


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There are generally two grounds to contest a Will or an Estate:

  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.

Eligible persons – who can make a Part IV Claim?

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