Who Can Contest a Will? (Vic)

There were few restrictions on who could contest a will in Victoria until 2015. With the introduction of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014, changes were made to the provisions of succession legislation so that only a select list of people close to the deceased could make a Testator’s Family Maintenance (TFM) Claim. This article explains who can contest a will in Victoria.

Who Can Contest A Will?

The new legislative provisions were introduced to prevent “fringe dwellers” from making claims against an estate and to simplify the eligibility criteria for close relatives of deceased persons. Under section 90 of the Administration and Probate Act 1958, eligible people can make a TFM claim to the Supreme Court of Victoria. If the court finds that the claimant was entitled to greater provision than they received in the will, it will order a redistribution of the estate in favour of the claimant.

Spouses

Under succession law, the deceased’s spouse has priority to inherit and to contest the estate. Here, the term “spouse” includes not only a wife or husband but also to a registered partner or a de facto partner. A de facto relationship is defined in the Family Law Act 1975 as a relationship between two individuals who are not married or related and are living as a couple on a genuine domestic basis. In order to prove eligibility, a domestic partner must either have a child who is still a minor with the deceased when they pass away or have lived with them continuously for at least two years immediately before their death.

registered domestic relationship confers the same rights on a person to make a claim as does a marriage certificate. A registered relationship is defined under the Relationships Act 2008 as two unmarried adults who, irrespective of gender or living arrangements, are in a committed relationship and give each other personal or financial support. Having a relationship registered legally establishes the relationship for the purposes of social security and succession law.

former marital, de facto or registered spouse can also contest a will if they were about to start or had started proceedings in the Family Court against the deceased. This allows for any obligation that the deceased had towards a former spouse to be accounted for.

Children

A minor child of the deceased can also contest a will in Victoria. Under estate law, a child includes biological and legally adopted children, and also stepchildren and “assumed” children of the deceased. A child can also make a TFM claim if they are younger than 25 and still a full-time student or are disabled. Any other adult child may contest a will in Victoria only if they can demonstrate financial need and that they lack the means of adequately providing for themself.

A Carer Can Contest A Will

A carer who provides unpaid support and care to a family member or friend who is frail, aged, disabled, or has a chronic condition, terminal illness or drug or alcohol dependency can contest a testator’s will if they were in a registered caring relationship with the deceased for no recompense, and not their partner.

A Dependent Can Contest A Will

Grandchildren, including those who are adopted or related through blended families, can only contest a will if they were also a dependent of the testator. Similarly, a member of the testator’s household can contest a will if they were at least partly dependent on the testator for maintenance and support at the time of their death. To qualify as a dependent, the claimant must prove that the deceased supported them financially to meet their living expenses. For example, a person who lived rent-free with the deceased could argue that their living arrangements amounted to dependence.

Who Cannot Contest A Will In Victoria?

Those who are not automatically eligible under the new limitations include the deceased’s grandchildren, siblings, nieces and nephews, cousins, and housemates.

Time Limits To Contest A Will

Eligible persons can contest a will only within set time frames. In Victoria, a claimant must make a TFM claim within six months. After this point, a claimant may only make a claim if they can convince the court that there is reasonable justification for the delay. Exemptions are rare because after six months the executor will have begun distributing assets to the beneficiaries and under the statutory regulation no application may be made against a distributed estate.

As the circumstances are different in every claim, it is important to see a lawyer without delay for advice on whether you are entitled to contest a will. 

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

Author

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 Armstrong Legal in 2020.
Legal Hotline - Call Now 7am to midnight, 7 days