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Contesting A Will In Victoria


In 2015, Victoria changed its laws regarding who could contest a will. The law now makes it explicit who is eligible to contest a will and the categories of person who may do so is more limited. This page outlines where the law now stands in terms of contesting a will in Victoria.  

Who is an eligible person?

The definition of an ‘eligible person’ is now contained in section 90 of the Administration and Probate Act 1958. It is significantly narrower than it was prior to the changes, bringing the law into line with the other states.

An eligible person now includes:

  •  a spouse or partner
  • a child or stepchild
  • a registered caring partner
  • a grandchild
  • a member of the deceased’s household
  • a former spouse or partner who was eligible to commence family law proceedings against the deceased.  

Family provisions claims

Under section 90A, an eligible person may make a family provision claim. This is a claim that:

  • the will left by the deceased failed to make adequate provision for their proper maintenance and support; and
  • that the testator had a moral duty to make adequate provision for their proper maintenance and support.

The time limit to make a family provision claim is six months from the date of the grant of probate or letters of administration.

What is the effect of the changes?

Under the changes, a spouse or de facto partner still has an automatic right to challenge the will, as does a former spouse or de facto partner under some circumstances.

Children of the deceased are eligible to challenge a will in Victoria regardless of their financial situation, or whether 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.

Will the court make a family provision order?

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.

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.

The eligible person’s contribution to the deceased’s estate will also be taken into consideration, as will any benefits they have already received prior to the deceased’s death.

Grandchildren who are applying to the court will also have to produce evidence 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.

Other important factors 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. 

Transferring money without probate

Under section 31A, transfers of property may now occur without a grant of probate or letters of administration where the value of the property is less than $25,000.

Such a 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 transferer will be protected from liability. This is to avoid the unnecessary expense related to applying for probate or letters of administration for smaller estates.

Conclusion

When making a will, it is important to be aware of the provisions of the Administration and Probate Act relating to family provision claims.

A testator who is making a will should take care to clearly set out their reasons for making particular bequests. In particular, if someone who would be entitled to inherit under the laws of intestacy is not provided for, the testator should ensure that they document their reasons for making the will in this way.

This will minimise the chance that a court will intervene and make a family provision order. 

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

Author

Michelle Makela

Michelle Makela is a Legal Practice Director at Go To Court Lawyers. She holds a Juris Doctor, a Bachelor of Science (Psychology) and a Master of Criminology. She was admitted to practice in 2006. Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. 

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