Contesting A Will
In Victoria, if a person has been left without adequate provision from a deceased estate, they may be able to contest the Will. Such an action is called a “Testators Family Maintenance Claim”, or “TFM claim”. On 1 January 2015, changes were made to the Victorian legislation in relation to persons who may be entitled to bring a TFM claim. The changes apply to estates where the Deceased died on or after this date.
Each State of Australia has a different set of rules which apply when contesting a Will. There are different time limits and eligibility differs in each state depending on where the deceased died. If the deceased died in Victoria, the information below is relevant.
Almost all of our Contesting a Will work in Victoria is done on a No Win No Fee basis.
Grounds for contesting a Will
A person contests a will when they make a Testator’s Family Provision Claim.
In Victoria, you may contest a will if:
- You are an Eligible Applicant; and
- You believe that you have been left without adequate provision; and
- The Will left by the Deceased is valid.
How to contest a Will
A TFM Claim is made in Victoria if;
- The Deceased was domiciled in Victoria as at the date of death;
- The Deceased owned real and personal property in Victoria as at the date of their death;
- The person bringing a TFM claim is an Eligible Applicant, as defined under Section 90 of the Administration and Probate Act 1958(VIC);
- The claim is made within 6 months from the date on which probate has been granted to the executor(s) of an estate, or outside of 6 months with special leave to do so from the Supreme Court.
If you are thinking of making a claim, or are not sure whether you are eligible to make a claim, you should act immediately and contact our office to speak to one of our lawyers to assess the merits of your claim.
Our lawyers will talk to you about your matter and whether there is a possibility of settling your claim without engaging in protracted legal proceedings. Alternatively, we can start proceedings on your behalf if others named in the Will, or the executor do not wish to negotiate and settle your claim.
Section 90 of the Administration and Probate Act 1958 (VIC) provides the following definition of an Eligible Person in relation to commencing a TFM claim:
- Spouse or Domestic Partner at the time of death. The Spouse must be married to the deceased as at the date of death.
- A Domestic Partner may be in a “registered”, or “un-registered”, relationship with the deceased as at the date of death. The threshold test for establishing a relationship with the Deceased as an unregistered Domestic Partner is whether that person was living with the deceased as a couple on a “genuine domestic basis” pursuant to the Relationships Act 2008. If there is no child from the relationship with the deceased who is under 18 years of age at the date of death, then the domestic partner must have been living for a continuous period of 2 years with the deceased before death;
- Former Spouse or Domestic Partner as at the date of death who was able to take proceedings against the deceased under the Family Law Act and who did not take such proceedings and was prevented by the death of the deceased from taking them, or, who did take proceedings and could not finalise them because of the death of the deceased;
- Carers. A carer can only bring a claim if they are in a “registered caring relationship” as defined under the Family Law Act 1975 and that the relationship was with the deceased. A relationship of this nature must not be for a “fee or reward” and between two people who are not a couple or married to each other. The key issue is that the relationship must be registered.
- Children are defined as:
- Under 18 years of age; or
- Was a full time student aged between 18 and 25; or
- Has a disability (as defined in Section 90 of the Administration and Probate Act);
- A step-child, or adopted child of the deceased, subject to the categories listed above. As of 10 May 2017, children who have been brought into a defacto relationship are now deemed to be “stepchildren” of that relationship for the purposes of identification as an “Eligible Person” under Section 90(f) as successfully argued by Armstrong Legal in the matter of Bail v MacKenzie (estate of Ruopp)  VSCA 108, Victorian Supreme Court of Appeal.;
- An adult child who has difficulty supporting their financial needs. The adult child claimant must demonstrate the degree to which he or she is not capable by reasonable means of adequately providing for their own proper maintenance and support;
- An “assumed child”. This is where the child was treated by the deceased as a natural child:
Whitehead v State Trustees Limited  VSC 424
In the 2011 decision of Whitehead v State Trustees Limited, the deceased was involved in a de facto relationship with the claimant. The claimant had a child to another man. The deceased willingly took on the responsibility of providing for the claimant’s child, accepting the responsibility of a “parental role” for the child. The child was awarded a share of the estate of the deceased as the Court deemed the deceased to have a moral obligation to make provision for the child.
- Grandchildren. This also includes step grandchildren or adopted grandchildren. However, there is a requirement that the grandchild be dependent on the deceased in the same way that a child is dependent on a parent.
- Member of the household of the deceased. This may be a person who is at the date of death of the deceased:
- Is a member of the household; or
- Had been in the past but, had it not been for the death of the deceased, would have likely in the near future to again become a member of the household.
A person who claims under this category must either have been wholly, or partly, dependent on the deceased for their proper maintenance and support.
Persons who do not fall under the “eligible person” criteria include, but are not limited to, nieces nephews, cousins, siblings and house mates.
As a potential claimant’s circumstances vary from matter to matter, we recommend that you contact us for a free case assessment.
In Victoria, a person has six months from the date probate is granted to the executor(s) of a deceased estate to contest the will, (Section 99 of the Administration and Probate Act 1958). A claim may be brought beyond the six month period upon application to and approval from the Supreme Court. It is up to the claimant to show that the estate would not be prejudiced by bringing a claim out of time and the reasons for the delay in making the claim.
However, it is imperative that the estate has not been distributed after the expiration of six months and before the claim has been filed with the court.
If you are unsure of whether your claim has exceeded the six-month time limit and what options are available to you, we encourage you to contact our team on 1300 154 509 for a free case assessment.
How do I get a copy of a will?
If you need to obtain a copy of a will, you should contact the executor or solicitor acting on behalf of the estate. In Victoria, the following persons are entitled to inspect or be given a copy of the deceased’s will under Section 50 of the Wills Act:1997 (VIC);
- any person named or referred to in the will, whether as a beneficiary or not;
- any person named or referred to in any earlier will as a beneficiary;
- any spouse of the testator at the date of the testator’s death;
- any domestic partner of the testator;
- any parent, guardian or children of the deceased person;
- any person who would be entitled to a share of the estate if the deceased person had died intestate (meaning the deceased person died without leaving a will);
- any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate;
- any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.
If you fit into one of the above categories of people entitled to obtain a copy of a Will and are having trouble getting a copy, your lawyer can consult with the executor or begin court proceedings seeking the production of the Will.
If the deceased died intestate (without a will), an application for letters of administration must be made to the Court. See Dying Without a Will below for more information.
Who pays the fees?
The party bringing the claim pays their own legal costs.
However, in most cases, the parties generally agree to have their costs paid from the estate if the matter is settled at mediation or during pre-trial negotiations. If a claim is deemed by the court as being frivolous or vexatious, the court strikes out the claim and orders the plaintiff (the party bringing the claim), in such circumstances, to pay the legal costs of the parties in accordance with the Supreme Court Scale Rates.
The cost of a claim varies depending on the number of parties involved and the complexity of the issues surrounding a claim. The cost of every case is very dependent on the specific circumstances. Clients need to be mindful that costs can effectively double if the matter proceeds to trial. It is therefore in the interests of the parties to try and resolve the dispute as quickly as possible to avoid escalating legal fees.
There is a general misconception in that a person’s estate will be forfeited to the government if they die without a will. Such a scenario may be played out in the rarest of circumstances, such as where there are no identifiable next of kin and no one has brought a claim against an estate.
The Administration and Probate Act 1958 has specific guidelines as to what happens to an intestate estate. In general, the estate will be distributed in accordance with sections 51 to 54 of the Act as follows:
- Where the deceased person leaves a spouse / partner and there are no children:
- The spouse / partner will receive the residue of the estate;
- Where the deceased person leaves a spouse / partner and there are children:
- The spouse / partner will receive the personal chattels of the deceased; and
- If the residuary estate is $100,000 or less, the whole of the residuary estate; or
- If the residuary estate is over $100,000, the spouse / partner will take the first $100,000, interest calculated on that amount from the date of death to payment as specified from time to time in the Penalty Interest Rates Act, less 2 ½% and 1/3rd of the balance of the residue.
- Children will take their share subject to an adjustment of any amount, property or financial support provided by the deceased to that child during the deceased’s lifetime.
- Parents and siblings of the deceased will take an equal share of the estate (if more than one), where the deceased is not survived by a spouse / partner or child(ren).
- The Crown (government) will only take the estate where no next of kin can be located (referred to as bona vacantia).
If you are unsure of your rights in relation to an intestate estate, please contact us to discuss your situation.
What does the court consider when making a claim?
Sections 91A(1) and 91A(2) of the Administration and Probate Act provides a list of factors which the court takes into consideration when determining the merits of a claim brought against an estate. They include the following:
- The court must have regard to:
- the deceased’s will, if any;
- any evidence of the deceased’s reasons for making the dispositions in the will;
- any other evidence in relation to providing for the eligible person.
- In making a family provision order, the court may have regard to the following:
- any family or other relationship between the eligible person and the deceased, including the nature of the relationship and if relevant the length of the relationship;
- any obligations or responsibilities of the deceased to the eligible person, any other eligible person and the beneficiaries of the estate;
- the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject;
- the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of the eligible person, any other eligible person and any beneficiary of the estate. This may also include the expectation of possible future inheritance from another family member;
- any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate;
- the age of the eligible person;
- any contribution (not for adequate consideration) of the eligible person to building up the deceased’s estate; or the welfare of the deceased or the deceased’s family;
- any benefits previously given by the deceased to any eligible person or to any beneficiary;
- whether the eligible person was being maintained by the deceased before that deceased’s death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased had done so;
- the liability of any other person to maintain the eligible person;
- the character and conduct of the eligible person or any other person;
- the effects a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries;
- any other matter the court considers relevant.
These factors also assist the court in determining the extent of any provision that may be made to a claimant.
Given that each matter is unique we recommend that you contact us for a free case assessment.
Can grandchildren contest a will?
The Administration and Probate Act sets out an “eligibility” and a “dependency” test for potential claimants against the Estate of a deceased person. A grandchild is an eligible person under the Act, and he or she is entitled to contest a Will.
To be successful, the grandchild must establish the criteria that relates to: dependency, moral duty to provide, and the absence of or the lack of proper maintenance.
If the court is satisfied that the applicant has established the above criteria, it will then decide what provision ought to be made out of the deceased’s estate for the grandchild. In that regard, each application will depend on its own set of circumstances.
Nieces and nephews
The Administration and Probate Act sets out an ‘eligibility’ and a ‘dependency’ test for potential claimants against the estate of a deceased person. A nephew or niece of the deceased is not a person who is specifically categorised as an ‘eligible person’ in the Act.
However, a nephew or niece may contest a deceased estate if, he or she was a person who was a member of the deceased’s household at the date of death of the deceased. In those circumstances, the niece or nephew must satisfy that he or she was dependent.
On the deceased, and was maintained by the deceased at the date of the deceased’s death, in addition to the ‘household membership’ criteria.
WHERE TO NEXT?
Have you been left out of a Will or treated unfairly? 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.