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Can A Friend Contest A Will? (Vic)

A testator writes a will to distribute their property after their death. Although the testator chooses who receives their assets, some people can legally contest these decisions. Essentially, the testator’s dependents can ask the executor or the Supreme Court of Victoria to overrule the will to distribute the deceased estate according to financial need. This article looks at whether a friend can contest a will in Victoria.

Testamentary Freedom

In Australia, every legally competent adult has testamentary freedom. This essentially means that a testator can leave their estate to whomever they like, no matter how unreasonable or perverse the decision may seem. For instance, it is legal and valid for a testator to write a will that disinherits their children and bequeaths everything to a stranger. However, the deceased’s closest family and dependants (those who relied on the deceased financial assistance) can contest any unreasonable provisions in a will.

Under the Administration and Probate Act 1958, an eligible claimant can apply for provision for their current and future financial needs. The Supreme Court assesses claims against a statutory formula to determine whether someone is eligible to contest a will and entitled to further provision.

Leaving A Bequest To A Friend

It is quite usual for a testator to leave a bequest to a friend in their will. A modest gift to a friend is usually not an issue. Sometimes the gift is cash, or a testator may bequeath a sentimental item. However, when a testator leaves a friend a significant inheritance, an eligible party can dispute this provision through a Testator’s Family Maintenance Claim. The claimant can assert that the testator should have reserved the bulk of the deceased estate for the deceased’s dependants.

Can A Friend Ask To See The Will?

Typically, a deceased’s friend is not entitled to see a copy of the will until after probate. At that point, the will becomes a public document, and the friend can access the will from the Supreme Court Probate Records. A friend can only demand to see a pre-probated will if they are a beneficiary of the current will or an earlier will, a creditor of the deceased, or a parent or guardian of a child mentioned in the will.

Who Can Contest A Will in Victoria?

In Victoria, a person can contest a will when the testator had a “moral duty” to provide for them. Broadly speaking, the deceased has a moral duty to provide for their spouse or domestic partner (including a former partner in the absence of a formal property settlement), their biological child and stepchild, and anyone that the testator treated as their child. Additionally, members of the deceased’s household and anyone in a registered carer relationship with the deceased can contest a will in Victoria.

Can A Friend Contest A Will In Victoria?

The Administration and Probate Act 1958 dictates whether a friend can contest a will in Victoria. While there is no specific eligibility for “friends” to claim against the estate, the friend may be eligible under a different eligibility category. For instance, any friend who lived with the testator is eligible to make a Testator’s Family Maintenance Claim. A friend who previously lived with the testator is also eligible if they intended to cohabitate with them in the future. If the friend was in a registered caring relationship with the testator, then the friend can contest a will in Victoria.

The prospective claimant needs to be aware that there are time limits when contesting a will. The deadline differs across different jurisdictions in Australia. In Victoria, a claimant must make a Testator’s Family Maintenance Claim within six months of the probate grant date. The Supreme Court will only consider a late application in extraordinary circumstances.

What Factors Determine A Testator’s Family Maintenance Claim?

Eligibility is only the first hurdle for a friend who wants to make a Testator’s Family Maintenance Claim. The Supreme Court considers numerous factors when determining whether the testator had a moral duty to make further provision for someone. The court considers the will itself to be the most crucial evidence, alongside any evidence about the testator’s intentions when they made the will. The court also looks at the relationship between the testator and the friend, whether the friend was dependent on the testator at the time of their death, and the friend’s capacity to provide for their own needs.

The contested wills team at Armstrong Legal has expertise in all wills and estates matters. If you need answers about your right as a friend to contest a will in Victoria, please get in touch with us or call 1300 038 223 to discuss your legal needs.

Dr Nicola Bowes

This article was written by Dr 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 working in higher education, Nicola joined Armstrong Legal in 2020.

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