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Challenging A Will in VIC


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505

Alun Hill

Our team practices exclusively in Wills and Estates Law and are here to guide you through the process to the best possible outcome.

If you are considering challenging a will, or if you have a question, we encourage you to call us on 1300 168 676 for a free initial case assessment.

Each State of Australia has a different set of rules which apply when challenging a Will.

There are different time limits and eligibility differs in each State depending on where the deceased died. If the deceased died in VIC, the information below is relevant.

HOW TO CHALLENGE A WILL IN VICTORIA

To challenge a Will in Victoria you will need to commence proceedings in the Probate List of the Supreme Court of Victoria. Challenging a Will is a separate action to contesting a Will (otherwise known as a “Testators Family Maintenance Claim” , or colloquially as a “Part IV Claim” in reference to Part IV of the Administration and Probate Act 1958 (VIC) under which such claims are made).

You will need to find out if Probate has been granted for an estate. To do so, you can visit the Probate Applications Index of the Supreme Court of Victoria website.

If Probate has not been applied for, you can search the Supreme Court of Victoria Probate online. You can search the website for the advertised intention of an executor or administrator to apply for a grant of Probate or Letters of Administration. The advertisement of an intention to apply for a grant of Probate or Letters of Administration is a mandatory requirement prior to filing the application itself. A search will tell you whether steps have been taken to prepare an application for a grant by an executor or administrator.

If a caveat is challenged by an executor or administrator, you will need to file material (an affidavit with corroborating documentation) supporting your contention that the Will is invalid. This material will be challenged by an affidavit in reply by the executor or administrator. The material filed by the parties will be assessed by a Judge who will then make a determination on the legitimacy of the caveat and appropriate orders.

To discuss whether you have a case, please call us on 1300 168 676 for a free case assessment.

WHO CAN CHALLENGE A WILL IN VICTORIA

A person lodging a caveat against a grant of probate must have “standing”. This includes:

  • A beneficiary under a previous will;
  • A relative who would receive a share in the estate if the deceased person died intestate;
  • A person who has a relevant interest (receipt of a share or benefit) in the estate which will be otherwise affected by the grant;
  • A person who would otherwise receive a share of the estate if the will was found to be invalid;

Probate can be revoked after a grant has been made in certain circumstances. These include, but are not limited to the following:

  • Where a person who is missing and is presumed to be dead is found alive;
  • Where a will was admitted to probate and the Deceased married, or remarried, after the date of that will;
  • Where a later will is found after an earlier one has been lodged for probate;
  • Where a forgery, or false statement made to seek the grant of probate, is proved;
  • Where the appointed executor/administrator is found not to be a “fit and proper person” by virtue of fraud, maladministration, negligence or criminal action as against the estate.

To discuss whether you have a standing to lodge a caveat or apply for revocation, please call us on 1300 168 676 for a free case assessment.

GROUNDS/REASONS FOR CHALLENGING A WILL

In Victoria, as in NSW, there are a number of grounds for challenging a Will or contesting a Will.

The main reasons for challenging or contesting a Will are as follows:

The person who made the Will lacked testamentary (mental) capacity;

  • If a person lacks capacity when they are executing a will, a will is invalid.
  • The test for capacity is set out in the case Banks v Goodfellow (1870) 5QB 549 at 565.
  • In summary, there are four things that must be fulfilled at the time a person signs his or her Will. The person who makes the will must:
    • Understand that he or she is making a Will and what that means;
    • Recall the nature and extent of their property in general;
    • Understand and appreciate any moral obligations they may have towards family, for instance understand who may have claims on their estate; and
    • Not be affected by a disorder of the mind or delusion to the extent that the will made would not have been made if the will maker was of sound mind.

Fraud

  • Fraud could exist if you think a beneficiary has committed fraud for the sole purpose of receiving a benefit under the will.
  • You need to convince a judge that there is evidence to prove fraud was committed.
  • It must be established that the fraudulent conduct had a direct effect on the making of the Will and that the fraudulent conduct was committed by the beneficiary for the sole purpose of receiving a benefit under the will.

Undue influence

  • If you can establish that a person made the will under undue influence, a court may declare the will to be invalid. If a will is invalid it will not be admitted to Probate.
  • Undue influence or duress may consist of a psychological or physical threat.
  • You need evidence that there was coercion. Persuasion is not enough to establish undue influence.

Forgery

  • You need evidence to prove that the Will was made by someone else or signed by someone else and is a forgery.

The person who made the Will did not know and approve the contents of the Will

  • When a person makes a will, they are presumed to have known and approved the contents.
  • You need to establish that the person who made the Will did not know and approve the contents of their Will.
  • If there are suspicious circumstances casting doubt into whether the person who made their will knew and approved of the contents, please contact one of our solicitors.

Family Provision (often referred to as contesting a Will)

  • If you are eligible and you have not been adequately and properly provided for, you may bring a claim for provision or further provision from the deceased’s estate.

Contract

  • The deceased may have entered into a contract regarding their estate.
  • If they have not adhered to the terms of the contract, there may be a claim for a breach of contract.

Trusts

  • A trust is a legal device that separates the ownership and control of an asset.
  • Trusts are used to protect assets or minimise tax.
  • The deceased may have established a testamentary trust.
  • A testamentary trust is established under a Will to appoint a trustee to use property for the benefit of a beneficiary as specified in the Will.
  • A beneficiary can challenge the decision making of a trustee, but you need to take action in court.
  • If you wish to challenge a testamentary trust, please contact one of our solicitors.

Proof of a serious illness will not necessarily lead to the conclusion that the Deceased lacked testamentary capacity, unless there is medical evidence to show that the illness suffered by the Deceased did in fact affect his or her mental / cognitive functioning. A mere suggestion or belief that the illness, or that the medical drugs used for treatment may have affected the Deceased’s mental functioning and cognitive abilities is insufficient. There must be conclusive medical evidence available to support such a finding.

In some cases, if you wish to challenge or contest a Will, you may need to do so before Probate or administration is granted.

COSTS OF CHALLENGING A WILL

The costs of Challenging a Will are at the discretion of the Court. However, there are no inflexible rules, although the general guiding principle is that the losing party may end up paying for a portion of the other side’s costs based on Court scale rates. If the action is considered to be “frivolous or vexatious”, the Court may be inclined to order costs against the “vexatious litigant” on an “indemnity basis” (ie – full solicitor / client costs). It is therefore recommended that you have your case thoroughly assessed before you consider challenging a will.

However, where a person with an interest in the estate challenges a will and is unsuccessful in that challenge, the Court may award that person’s legal costs from the estate. Again, this is a discretion of the Court.

An order for costs is subject to the basis on which the will is challenged and whether or not that challenge is successful. Costs in such challenges are not guaranteed to come out of the estate.

If you are considering a challenge to a will, please contact one of our lawyers to discuss the merits of your matter and associated costs issues.

CHALLENGING AN EXECUTOR/ADMINISTRATOR OF A WILL

The actions of an executor / administrator cannot be challenged until such time the estate, or trust, has been administered and is ready for distribution.

During the administration of an estate which occurs in the six months from the date probate, or letters of administration are granted by Court, ownership of the estate assets are held in the name of the administrator. After the six month administration period expires, the administrator becomes the trustee of any assets not yet distributed. This includes any assets held under a trust for beneficiaries created by a will.

Once the administrator becomes a trustee, their role is effectively governed by the Trustee Act 1958. The trustee has “fiduciary responsibilities” to the beneficiaries, which includes managing the trust assets in a responsible manner so as not to adversely affect the value of the trust. A trustee should seek professional financial and taxation advice to properly manage and invest the trust and to avoid wastage or negligence. If a beneficiary suspects that the trust fund / assets have not been properly managed, the beneficiary is entitled to inspect the books of account for the trust. If the trustee is not willing to disclose the books of account for the trust, or is known to have breached his or her fiduciary duty to the beneficiaries, steps can be taken to remove the existing trustee and appoint a new trustee, or seek recovery action against the trustee personally for loss suffered as a result of the trustee’s breach.

A will can also set up a special disability trust (“SDT”) for a beneficiary with special needs. Administration of a SDT is an onerous burden and one which should not be taken lightly. A SDT requires careful use and management of trust funds and income for the specific needs of the beneficiary. In some cases, the beneficiary may not be able to raise questions regarding the management of the trust due to the nature of their special need or disability. In such situations, a beneficiary may require assistance from a personal administrator appointed by the Victorian Civil and Administrative Tribunal to manage the financial and legal affairs of the beneficiary. This person, also called an “administrator”, may take action against the trustee on behalf of the beneficiary for breaches of fiduciary duty by the trustee.

Executors and Administrators are entitled to seek commission for “pains and troubles” encountered in the course of administering an estate. However, if the person seeking a commission from the estate or trust is not a “professional administrator” such as the Public Trustee, a private trust company or accountant or lawyer engaged to professionally administer the trust, that person will not be automatically entitled to commission. In such cases, a non-professional administrator should take steps to seek an order from the Court awarding commission from the trust for their “pains and troubles”. Commission applications may also be challenged by beneficiaries if they do not believe the trustee / administrator is entitled to such commission.

If you have been appointed as an executor, trustee or administrator of a trust or estate, and are unsure of your rights and responsibilities call us to discuss how we can help you.

HOW LONG CAN A WILL BE CHALLENGED? (TIME LIMITS)

A challenge to the validity of a will must be done:

  • By lodgement of a caveat prior to probate being applied for by the executor; or
  • Prior to the expiry of 6 months from the date probate has been granted to the executor (Revocation).

The grounds for challenging a will include, but are not limited to, the following

  • The Deceased lacked mental capacity at the time of making their will;
  • The Deceased did not know or, or approve, the contents of their will;
  • The Deceased was subjected to undue influence at the time of preparing and executing their will;
  • The will was forged;
  • The will was not executed in accordance with the Wills Act 1958 (VIC);
  • The Deceased did not intend the submitted document to be their Will.

If you seek to revoke either a grant of probate, or the will, once probate has been granted, it is recommended that you act quickly. Such an application is filed in the Supreme Court with the Trusts, Equity and Probate List and requires detailed material to support a claim that a grant of probate be revoked, a will be rectified, or interpretation of a will required. Taking such a step is not without its risks if the material filed in support of a claim is merely speculative or suggestive.

To discuss whether you have a case, please call us on 1300 168 676 for a free case assessment.

CHALLENGING THE VALIDITY OF A WILL

There are generally three reasons to challenge the validity of a Will. They are:

  • The will may be invalid. Invalidity of the Will can be on the basis, but not limited to, the following:
    • The Deceased lacked mental capacity at the time of making their will; or
    • The Deceased did not know or, or approve, the contents of their will;
    • The Deceased was subjected to undue influence at the time of preparing and executing their will;
    • The will was forged;
    • The will was not executed in accordance with the Wills Act1958 (VIC);
    • The Deceased did not intend the submitted document to be their Will;
  • Where the will being submitted for the probate application has in fact been replaced by a later will which has not been submitted; or
  • To prevent one person from obtaining a grant of Letters of Administration (where a person dies without a will), on the basis that the person lodging the caveat has a better right to file the application for the administration of the Deceased’s estate.
  • For example, where a sibling of a Deceased files an application for Letters of Administration and the spouse of the Deceased challenges the application. The spouse will be deemed to have the greater right to make such an application; or
  • The person seeking Letters of Administration should be disqualified from making the application.

Who can Lodge a Caveat?

A person seeking to lodge a caveat must have “standing” to do so and have a “relevant interest” in the Deceased’s estate which would be affected by the probate application. Generally, such a person can be:

  • A person, entitled to receive a share of an estate had the Deceased died without a will, challenging the validity of a will and that there are no previous wills; or
  • A beneficiary under one will who challenges the validity of a later will;

When do you Lodge a Caveat?

A caveat can be lodged prior to, or shortly after an application for probate or Letters of Administration have been applied for. A caveat cannot be lodged after the expiry of six months after the grant of probate / Letters of Administration where the executor has properly taken steps to distribute the estate.

A caveat will last for 6 months from the date when it is lodged, unless there is a notice sent by the Probate Registry requesting the caveator to file a statement of grounds for the caveat. If the caveator does not file a statement of grounds within 30 days of receiving the Registrar’s notice, the caveat will lapse.

A caveat can be extended by way of order of a Court, depending on the circumstances requiring an extension.





where to next?

Have you been left without adequate provision from a deceased estate? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505