Can a Niece or Nephew Contest a Will? (Vic)

In Victoria, the legal framework for contesting a will is primarily governed by the Administration and Probate Act 1958. A family maintenance claim allows eligible people to seek adequate provision from a deceased’s estate if they believe a will fails to make proper provision for their maintenance and support. Whether a niece or nephew can contest a will in the state depends on their relationship with the deceased, their eligibility to bring a claim, and the circumstances surrounding the estate. This article explains the factors relevant to the question of whether a niece or nephew can contest a will in Victoria.

Eligibility to contest a will

To contest a will in Victoria, a person must establish their standing as an “eligible person”. A person is eligible to make a claim for provision (or greater provision) from a deceased estate in Victoria if they are the deceased’s:

• spouse or domestic partner
• child (including adopted child or stepchild)
• grandchild (in specific situations)
• registered caring partner, or
• former spouse or domestic partner (in specific situations)

In addition, a person may be eligible to claim against an estate if, at the time of the deceased’s passing, they were a member of their household and/or dependent upon them.

As can be seen from the list above, a niece or nephew is not automatically eligible under this statutory provision to make a claim. However, a niece or nephew may qualify as an eligible person if they can demonstrate dependency on the deceased or that they were a member of the deceased’s household.

Dependency and household membership

The concepts of dependency and household membership play a critical role in determining eligibility for nieces and nephews to contest a will.

Dependency

To establish dependency, the claimant must prove that the deceased provided significant financial or non-financial support to them, and also demonstrate that they relied on this support to meet their reasonable needs. Financial support can include assistance with living expenses, education, healthcare, or housing, but would not include luxury gifts or contributions to holidays. Non-financial support may include contributions towards daily needs (such as regular childcare) that the claimant will have to pay for in the future.

Household membership

If a claimant was living with the deceased and was treated as part of their household at the time of death, they have the required eligibility to make a claim. This goes beyond mere cohabitation and may include evidence of shared domestic arrangements and familial bonds. However, this would not include individuals who simply shared a property as co-tenants, or if the claimant was renting part of the deceased’s home on a commercial basis.

Both elements require detailed evidence and are considered on a case-by-case basis by the court.

Grounds for contesting a will

After a niece or nephew establishes their eligibility to make a claim, they must still provide valid grounds for contesting the will. For nieces and nephews, the court will consider:

• the extent of their dependency on the deceased
• the closeness and significance of their relationship with the deceased. Evidence of a history of emotional and financial support, shared experiences, and the deceased’s expressed intentions toward the claimant may strengthen such a claim;

• the size of the estate and the adequacy of provision made for other beneficiaries, such as the deceased’s children or spouse;
• the needs and entitlements of other eligible people such as the children or spouse of the deceased, who may have stronger claims that a niece or nephew;
• the claimant’s financial position, including their income, assets, liabilities, and ability to support themselves; and
• evidence that the deceased made promises to the niece or nephew regarding inheritance or provision.

The court exercises significant discretion in determining what constitutes “proper provision”, and it is particularly crucial for the claimant to present compelling evidence of their financial need and the deceased’s moral obligations toward them.

Practical steps

Nieces and nephews who are considering contesting a will should take the following steps:

Seek legal advice early

Consulting an experienced wills and estates lawyer is essential to assess the merits of the claim and navigate the complex legal process.

Gather evidence

This includes documentation of financial dependency, proof of household membership, communications with the deceased, and any other evidence supporting the claim.

File the claim promptly

In Victoria, family provision claims must generally be filed within six months of the grant of probate or letters of administration. Exceptions may be made, but only in limited circumstances.

Consider alternative dispute resolution

Mediation or negotiation with other beneficiaries may offer a less contentious and more cost-effective way to redistribute an estate to be fairer to all parties.

While nieces and nephews are not automatically entitled to contest a will in Victoria, they may do so under specific circumstances by demonstrating dependency and/or household membership. The process is governed by complex legal principles, and success depends on a careful evaluation of eligibility, grounds for the claim, and the strength of the evidence. Given the emotional and financial implications of will disputes, seeking timely legal advice and exploring alternative resolution methods are critical steps for navigating this challenging area of law.

Please contact Go To Court Lawyers on 1300 636 846 for advice about unfair wills or any other legal assistance.