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This article was prepared by Go To Court Lawyers, Australia's largest legal service. For legal advice specific to your situation, call 1300 636 846.
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.
faqs: - question: 'What happens if I''m not listed as an eligible person but believe I deserve inheritance?' answer: 'Unfortunately, you cannot make a family provision claim unless you fall within the specific categories defined in section 90 of the Administration and Probate Act 1958. The 2015 changes significantly narrowed who can contest a will in Victoria. However, you may still have other legal options depending on your circumstances, such as challenging the validity of the will itself on grounds like lack of capacity or undue influence.' - question: 'How does Victoria''s law on challenging wills differ from other Australian states?' answer: 'Victoria''s 2015 changes brought the state in line with other Australian jurisdictions by narrowing the definition of ''eligible person'' who can contest a will. Previously, Victoria had broader categories of people who could make family provision claims. Now, only spouses, children, stepchildren, registered caring partners, grandchildren, household members, and eligible former partners can challenge a will under Victorian civil law.' - question: 'What are the costs involved in challenging a will in Victoria?' answer: 'The costs of challenging a will vary depending on case complexity and court proceedings required. At Go To Court Lawyers, we offer an initial fixed-fee consultation for $295 to assess your eligibility and prospects of success. This consultation will help you understand the potential costs involved, including court fees, legal representation, and whether you may be liable for the other party''s costs if unsuccessful.' - question: 'How can a civil lawyer help me challenge a will in Victoria?' answer: 'A civil lawyer can assess whether you qualify as an ''eligible person'' under section 90 and evaluate the strength of your family provision claim. They will gather evidence to prove the deceased had a moral duty to provide for you and that the will fails to make adequate provision for your maintenance and support. Your lawyer will also handle court proceedings, negotiate settlements, and ensure all deadlines are met.' - question: 'Is there a time limit for challenging a will in Victoria?' answer: 'Yes, there is a strict six-month time limit to make a family provision claim in Victoria. This deadline runs from the date probate is granted or letters of administration are issued, not from the date of death. Missing this deadline can permanently bar your claim, so it''s crucial to seek legal advice immediately if you believe you have grounds to challenge a will.' ---