Contesting a will can be a difficult decision to make. Before you lodge a claim, you must think about everyone involved in the will, the process it will take to successfully contest the will and, of course, how long you have to lodge a claim.
Even though a person is free to decide who inherits their estate, they may still have a legal obligation to provide for someone. In Victoria, some laws protect people who have been unfairly left out of a will or inadequately provided for. We will explore some of the details and steps you need to take to successfully contest a will within the statute of limitations.
Grounds for contesting a will in Victoria
There must be an adequate reason for you to contest a will. Outside of feeling entitled to part of the deceased’s estate, there may be other reasons why a will should be challenged, such as:
- Breach of trust: There is a lot of trust offered to the appointed executor and there may be circumstances where the executor was not distributing the estate fairly or properly.
- Undue influence: The deceased may have had someone influence their decision regarding who should be in the will and how much each person deserves to receive. This would be considered illegal, as a final will is meant to represent the will-maker’s true intentions and obligations.
- Testamentary capacity: If the deceased was not in good mental health at the time of writing and officiating the will, the document could be considered invalid.
To be successful in your case, you must be an eligible person and show you have a financial need greater than that of anyone else named in the will. Further, you must also demonstrate the reasons why you are entitled to be included in the will and that the estate is large enough to provide for you without greatly affecting the other beneficiaries.
Eligible persons allowed to contest the will
Family members are considered a priority over anyone else who may be a beneficiary. In the past, neighbours, friends or acquaintances were eligible to contest a will; however, these laws have changed to only include specific beneficiaries. Family members include:
- Spouse, former spouse, de facto or domestic partner.
- Children and stepchildren.
- Any person in a close relationship with the deceased.
- Anyone financially dependent on the deceased at the time of their death.
In Victoria, grandchildren may contest a will but must prove that they were wholly or partially dependent on the deceased for proper maintenance and support.
Family member priority and how to be successful in your claim
While the court sees family members as a priority over any other dependents or beneficiaries, there are still some nuances to the family hierarchy that should be considered:
- The court will not change a will just because it seems unfair; you must prove why it should be adjusted.
- All will provision claims will be judged based on financial need and the health of each family member.
- Spouses are regarded as a top priority concerning eligibility for the estate.
- The length of the relationship with the deceased is highly considered.
- A direct child will have more influence over eligibility than stepchildren or grandchildren.
- A dependent will have a greater claim to the estate than children, stepchildren or grandchildren.
- Younger children will have greater needs than older, financially established children.
- Disabled children will have a stronger claim to the estate than older children, stepchildren and grandchildren.
The courts will consider many different angles before making a decision — if your claim goes all the way to family court. Typically, your family provision act claim can be settled outside of court proceedings in the mediation phase where both parties will argue their points in a structured setting with a court-appointed mediator.
Time limits and laws exclusive to Victoria
To be successful in contesting wills, you must lodge the claim on time. Your application must be made within six months after the probation was granted or administrated or within three months from the time you’ve given notice to the estate.
Approval for the claim must be granted by the Supreme Court of Victoria. In the application, the claimant must prove that changes to the will couldn’t be prejudiced in bringing the claim out on time.
However, there are exceptions to these limitations as long as the estate has not been fully distributed to beneficiaries. In your application to the Supreme Court, you must provide a valid reason for the delay.
An extension is not always possible. When the estate has been fully distributed, it can be difficult or impossible to recall the items back to be redistributed. Therefore, it’s vital to contact family law compensation lawyers as soon as you receive notice of the will.
How to make a family provision claim
A family provision claim in Victoria is regulated under the Administration and Probate Act, which outlines eligible people and valid grounds for contesting. You may bring your application to either the County Court or the Supreme Court of Victoria, but not to the Magistrates Court in Volontaire Civil à l’Aide Technique (VCAT).
The court has the power to refuse applications if the claimant’s behaviour toward the willmaker was unsatisfactory or inappropriate. What this means is you can become ineligible due to poor treatment of, or family violence toward the deceased, even if you are a direct descendant. The character and conduct of the applicant are taken into account when deciding on will changes.
The freedom of testation is the right of the will-maker to include or exclude anyone they want in their will. This point is considered first as the court considered your claim. The amount of any provision made by the court will not provide more or less than what is necessary to the claimant for proper maintenance and support.
Anyone who makes a claim against the will, must seek to uphold the wishes of the deceased. In doing so, the claimant may decide to compromise the estate with the other beneficiaries in a settlement.
While defending the wishes of the deceased estate, you should seek legal advice and support to contest the will.
Gerard Malouf & Partners can support you through the process
Contesting or challenging a will can be a long, arduous and confusing process. Working against close family members during a sensitive period can feel overwhelming on top of navigating legal terms, regulations, timelines and expectations.
The family provision claims lawyers at Gerard Malouf & Partners can help. We focus our efforts on helping you get the estate you need to maintain your lifestyle and quality of life. Whether we are facing a questionably valid will, aged care concerns or adequate provision, we have your back. Our dispute lawyers have years of experience and know the intricacies of a delicate beneficiary dispute.
We will check on your eligibility and help file for you to the appropriate Court. While you grieve your loved one, we will work through the proceedings and can even represent you during mediation. Mediation could be the fastest and most effective way to resolve the issue and we can take care of all of the proceedings for you.
We are committed to providing legal service to all of our customers. In addition to working on a no-win, no-fee basis, we also offer no-obligation legal advice over the phone or in-person so we can decide on where to go next in your claim.
If you’re ready to get started, contact a Gerard Malouf & Partners law professional today.
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