Disputing A Will In Melbourne

In Melbourne, there are two separate ways of disputing a will: disputing the validity of the will, or disputing the provisions contained in the will. There are rules about who is able to challenge a will on the basis of validity, and who is able to contest a will based on its provisions. It is not possible to file an action for both forms of disputing a will, because a claimant cannot contest a will until it is proved as valid. This article outlines the purpose of each type of legal dispute in Melbourne, and identifies the people who have the legal standing to file each type of dispute with the Supreme Court of Victoria in Melbourne.

Disputing The Validity Of A Will In Melbourne

An interested party can dispute the validity of a will in Melbourne if the document is a fraud, forgery or was created while the testator was under duress. A will can also be challenged if it does not meet the formal requirements for a will under succession law. For instance, someone can challenge a will if it not executed (signed) and witnessed by at least two witnesses who are not themselves a spouse of the deceased or beneficiaries under the will.

In Melbourne, a person can also challenge a will if there is a lack of clear testamentary intent. For instance, if someone drafted a document but it is not clear if they intended it to be their last will and testament. It is more typical for someone to dispute the validity of a will on the basis that a deceased was not legally capable of forming testamentary intention. This occurs most often when the testator was elderly or affected by personal or psychiatric conditions that interfere with the capacity of the testator to understand the significance of drafting their will. In such a case, the court in Melbourne may decide that there is sufficient evidence to suggest that a deceased lacked testamentary capacity at the time of executing the will.

The first step for anyone disputing a will in Melbourne on these grounds is to file a probate caveat. If the court has not already probated the will then a caveat will suspend the process until a decision is made on the validity of the will.

Eligibility To Challenge A Will In Melbourne

Only an applicant with “standing” can lodge a probate caveat with the court. Those with standing include beneficiaries under the current or former will, as well as any person who would inherit from the testator if they died without a will and the estate was left intestate.

Disputing The Provisions Of A Will In Melbourne

Someone who is left out of a will or feels that a will does not fairly provide for them does have legal redress. In Melbourne, the Administration and Probate Act 1958 (Vic) states that if a testator can afford to do so, they are morally obligated to make adequate provision for their dependents. An eligible claimant can make a Testators Family Maintenance (TFM) application to the Testators Family Maintenance List of the Supreme Court of Victoria. The court will assess a TFM application according to a range of criteria. The court will determine the TFM based on what a “reasonably minded testator would do”, taking into account the financial needs of the claimant, the relationship between the claimant and the testator, and the strength of other claims against the estate. If the claim is successful, the court may decide to order a deviation from the will instructions to provide a portion for the claimant that is more suitable for their needs.

The list of those who are eligible in Melbourne to dispute the provisions of a will is limited to:

  • A current or former domestic (or de facto) partner or spouse of the deceased. The former spouse is only eligible if they were unable to finalise a Family Law Act 1975 proceeding because the testator passed away;
  • A biological, adopted, assumed child or stepchild of the deceased;
  • A spouse or partner of an eligible child of the deceased, who was partly dependent on the deceased, as long as the deceased’s child passed away themselves in the year prior to the testator’s death;
  • A registered caring partner of the deceased, as defined by the Relationships Act 2008 (Vic);
  • A grandchild of the testator, as long as they were also a dependent of the deceased; and
  • A dependent member of the deceased’s household (either currently, or formerly and likely to be again in the future).

Time Limits For Disputing A Will In Melbourne

There are no time limits to challenge the validity of a will in Melbourne, but it is better to question the will before it is probated, otherwise the applicant will need to request a revocation of the probate grant. There are, however, strict deadlines for a TFM claim against a deceased estate. In Melbourne, a claimant needs to inform the executor of the estate that they intend to make a TFM claim before six months passes from the date of probate grant. This is essential to stall the distribution of the bequests to the beneficiaries. In exceptional circumstances, the court may accept a late application, but the claimant would have to justify the delay.

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


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 Go To Court Lawyers in 2020.
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