Contesting a Will in Victoria

In Victoria, while a deceased person still has a moral duty to provide for a surviving spouse or child who can demonstrate a need for provision, that moral duty is not restricted to family members, but embraces claimants who, although not related to the deceased, can still demonstrate a moral claim to the estate.

Step One – obtain a copy of the will

This is crucial. Do you have it? Have you asked for a copy? What does it say?

If you haven’t seen a copy of the will the very first step is to obtain one – whether you are named in it or not. You can simply ask the executor for a copy. If he or she won’t oblige there are other steps that can be taken, see: how do I get a copy of the will?  Alternatively, contact us, we may be able to help.

If there is no will you need to consider whether or not you are eligible under the rules of intestacy – in other words, what happens when there is no will. These rules do not always work fairly and can be subject to challenge, just like any will can.

If you don’t know who the executor is, consider asking close friends and relatives of the deceased or the deceased’s lawyer. If you are still unable to find a will you need to consider the rules under intestacy and how they effect you: what if there is no will?

If you have seen the will and you know that, either:

• you are not named in it; or
• you are named but have not been given an adequate share;

… consider the next step, establishing eligibility.

Step Two – establish eligibility

The Administration and Probate Act (Vic) 1958 outlines the following considerations to determine whether a deceased person had a responsibility to provide for an applicant:

1. Any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
2. Any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
3. The size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
4. The financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
5. Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
6. The age of the applicant;
7. Any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
8. Any benefits previously given by the deceased person to any applicant or to any beneficiary;
9. Whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
10. The liability of any other person to maintain the applicant;
11. The character and conduct of the applicant or any other person; and/or
12. Any other matter the Court considers relevant.

What does all this mean? It means there are no hard and fast rules and the court will take the nuances of every individual case into account.

Step Three – check the limitation period

In Victoria the limitation period for commencement of family provision claims is 6 months from the date of the grant of probate or letters of administration – Administration and Probate Act 1958

If you wish to contest a will you’ll need to file an application in court no later than the specified date.

If you do not meet this deadline and you have a good reason why, you may be able to convince the court to make an exception. Generally speaking however, time limits when challenging wills are strictly applied.

Step Four – Consider the size and nature of the estate

Once you have established that 1) you are eligible to make a claim for family provision and 2) the limitation period has not expired, the next step in challenging a will is to obtain clarity surrounding the assets and liabilities of the estate.

What are the assets and liabilities of the estate and what are their nature? Was there property, superannuation, savings? Did the deceased own a business, shares, other investments? Were the assets held solely or jointly? Did he or she have debts?

In a claim for family provision it is ultimately the executor’s duty to disclose these details. But in the early stages it is still helpful if you have at least a rough idea of what you’re dealing with. If you have been out of touch with the deceased and genuinely have no idea as to what the estate comprises often a letter from your solicitor to the estate solicitor is sufficient to obtain some particulars. Contact us if we can help you do this.

Step Five – can you establish a need for provision?

Believe it or not, you do not have a ‘right’ to an inheritance.  If you are a wealthy person, if you are ‘doing okay’ financially, then your deceased parent is not obliged to give you more money.

I once had an enquiry from a man who was aggrieved that his mother had only left him $100,000 out of an estate of $1 million. She gave the rest to his sister. When I asked some questions it turns out that he was a self-funded retiree with over $6 million in assets, but he was calling me because he didn’t think it was fair that his sister got more than him. He didn’t need the money, he was just angry that his mother didn’t treat them equally. I had to tell him that I didn’t think he had a case because a) he was already wealthy and, besides b) his mother still gave him $100,000 – a lot of money!

Turns out this wasn’t really about the money, it was about this man’s anger and jealousy towards his sister who his mother favoured, as was her right. Parents can (and do) favour one child over the other. There is no rule that says they have to treat them equally.

So what is ‘need’ and do you have it?  It depends – every case is different. As most of us don’t have $6 million in assets, most people can satisfy this step because most people have a mortgage or they’re renting or they don’t have enough superannuation to retire on or their house needs renovations that they can’t afford. In most cases this step is not a difficult one to get over.

Generally speaking a person with a mortgage or some other debt will have ‘need’, but this is to be considered in light of the size of the estate and its competitors.