Can a Beneficiary Contest a Will? (Vic)

In 2015, Victoria introduced the Justice Legislation Amendment (Succession and Surrogacy) Act to prevent “fringe dwellers” from making frivolous claims against deceased estates. Prior to this amendment, anyone could contest a will and claim that the testator had a responsibility to make provision for them. Since the amendments, the only people eligible to contest a will are the spouse (including de facto partners and former spouses), child (including step-children and adopted children), grandchild, and registered caring partner. The amendments also recognised that any person living in the deceased’s household at the time of death could contest the will.

To make a successful claim, the applicant must establish that the testator had a moral duty to provide for them to a greater extent than achieve by the terms of the will. Siblings and nieces and nephews generally cannot contest a will unless they were financially dependent on the deceased and living with them at the time of their death.

Obtaining A Copy Of The Will

A beneficiary who plans to contest a will should first obtain a copy. In Victoria, certain people are entitled to inspect the will or receive a copy, including any beneficiary of the will (or of an earlier will), and any spouse, parent or child of the testator. In addition, any person who would be entitled to a share of the estate under intestate law (that is, if the deceased had died without a valid will) can request a copy, as can any creditor with a verifiable claim against the estate. Any of these persons can obtain a copy of a will from the estate’s executor or administrator.

Time limits for Beneficiary to Contest A Will In Victoria

A beneficiary contesting a will in Victoria must make a TFM claim within six months of the grant of probate and before the estate has been distributed. The Supreme Court can make a special order allowing for a claim to be made out of time, but the claimant must show there was a good reason for the delay and that the action will not prejudice the estate.

Factors Relevant In Contesting A Will

When assessing the merits of a TFM claim against a deceased estate, the court will consider a list of factors. A claim will be evaluated primarily on the basis of the size of the estate minus any liabilities, and whether the beneficiary received adequate provision. The court will consider the finances of the claimant and other beneficiaries of the will, including their earning potential, and current and future financial needs. It will note the age, character and conduct of the claimant, and whether they have any mental, physical or intellectual disability. The courts will also consider whether the claimant substantially supported the testator during their lifetime or materially contributed to any of their assets.

Can a Beneficiary Contest A Will Nominal Provisions

Testators sometimes include a nominal provision for a person in their will thinking that this will prevent the person from contesting the estate. It is important to understand that this strategy is not effective in Victoria, even though it is an accepted practice in other jurisdictions.

If a testator leaves a thousand dollars to one child and a million dollars to the other in Victoria, then the child who receives the nominal provision is entitled to contest the will. Indeed, in this situation, there is a strong case for the court to find that adequate provision has not been made, considering the assets of the estate. In such a situation, the court may order that the children share the estate, and each inherit $500,000. Alternatively, the favoured child may keep the greater share of the estate because of other factors, like having made greater contributions to the testator or to the estate. Equally, the less favoured child may inherit a larger share of the estate because they can demonstrate greater financial need.

Preventing A Beneficiary From Contesting A Will

A will needs to be carefully drafted to avoid legal claims that may overrule the testator’s wishes. Although no amount of careful drafting can fully prevent a beneficiary from contesting the estate, a lawyer can take steps that limit the chances of a successful claim on the estate. For instance, a will can be written to demonstrate that the testator gave careful thought to each dependent’s financial needs, and the document might offer rationales for why the deceased made certain decisions. A solicitor can also advise a wil-maker to take actions prior to their death, like personally gifting assets to their preferred beneficiary. Alternatively, if a testator has concerns about a dependent’s ability to manage their inheritance, they can set up a trust to hold assets safely for their benefit.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Armstrong Legal in 2020.
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