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Challenging A Will In Victoria

Proposed Changes To Succession Law Disputes

Victoria’s Succession Laws regarding challenging a will in Victoria changed in July 2015 with the passing by the Legislative Assembly of the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014. The changes this Bill made to the Administration and Probate Act 1958 in regard to who has the right to challenge a Will.

Prior to the changes, anyone who believed they should have been left a financial provision could challenge a will in Victoria. This included grandchildren, nieces, and nephews, along with non-family members such as carers and companions.

The first draft of the Bill went to the extreme making it difficult for adult children without a disability to challenge their parent’s will. It also prohibited anyone from making a claim against an Estate where they had signed a written agreement not to challenge the will, regardless of any change in their circumstances. These strict conditions were removed from the Bill prior to its passing. The amended Bill allowed adult children to challenge the will regardless of their financial needs.

Challenging A Will In Victoria

Changes to eligibility regarding challenging a will in Victoria

The definition of an ‘eligible person’ is now in section 90 of the Administration and Probate Act 1958 and has narrowed significantly, making it more in line with the other States. A new section 90A will allow an eligible person to make a family provision claim. A spouse or de facto partner has an automatic right to challenge the will, as does a former spouse or de facto partner, if a property settlement had not been reached at the time of death.

Children of the deceased are also eligible to challenge a will in Victoria regardless of their financial situation, or if they have been estranged.  The reason for this is to ensure the wealth remains within the family, and the deceased has not been pressured by a carer or family friend to leave their estate to a non-family member.

Grandchildren can also challenge the will if they can show that at any time they were financially dependent on the deceased. One concern with grandchildren being able to challenge the will is ensuring that they don’t take advantage of this amendment, and seek to move in with their elderly grandparent prior to their death.

The time limit to make a claim is still 6 months from the date of probate or letters of administration.

Factors to be considered in making a family provision order

The new section 91A outlines the factors the Court must take into consideration when making a family provision Order. These include:

  • the content of the deceased’s will and how the estate has been divided
  • any evidence of the deceased’s reasons for making the dispositions in the will, such as why they may have left money to one child and not another, and
  • any other evidence of the deceased’s intentions in relation to providing for, or not providing for, the eligible person.

Therefore, it may be important when making a will to clearly define the reasons certain people may not be included, or why they may be getting a different share of the estate to another beneficiary. 

The Court will also be required to take into consideration the relationship between the deceased and the eligible person, and any obligations the deceased may have had to the eligible person. Important factors also include:

  • the size of the estate
  • any liabilities to which the estate is subject, and
  • the financial resources, earning capacity and financial needs of the eligible person. 

The eligible person’s contribution to the deceased’s estate will also be taken into consideration, or any benefits the person may have already received prior to the deceased’s death. Grandchildren who are applying to the Court will also have to produce some evidence of a claim that they were maintained by the deceased.

The other beneficiaries’ provisions will also be taken into consideration, as will the effect of making a family provision order on their entitlements under the will.

Transferring money without probate

The new 31A section allows the protection of payments, or transfers of property, without requiring probate or letters of administration, to the value of $25,000. The transfer can be made to the spouse or de facto partner, a child, or other person who may be entitled.

If money or property is transferred in this manner, then the person will be protected from liability. This is to avoid the unnecessary expense related to applying for probate or letters of administration for smaller estates.

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