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Grounds For Contesting A Will (Vic)

In Victoria, there is legislative provision for redress if a testator does not leave adequate provision for their dependents in their will. A dependent can file a Testator’s Family Maintenance (TFM) claim against the deceased estate for a greater portion than their existing provision, or if they were not mentioned in the will at all, for a share of the assets. A claim will only be successful if the claimant has grounds for contesting the will.

It is not unusual for a family member to be disappointed with the provision made for them in a relative’s will, but disappointment is not grounds for a TFM claim. Only the reasons listed in the Administration and Probate Act 1958 can provide grounds for contesting a will in Victoria. An eligible person must lodge a claim within six months of the grant of probate (unless they are granted leave to bring an out of date application) and have a sufficient basis for the action. This article explores the different grounds for contesting a will in Victoria.

Eligibility For Contesting A Will

A TFM claim can only be filed with the Supreme Court if the testator owned real estate in Victoria or lived permanently in the jurisdiction, and if the claimant is eligible to claim and has grounds for contesting a will in Victoria.

Those who are eligible to lodge a TFM claim include a current spouse of the deceased, and a registered, de facto or domestic partner of the deceased. A former spouse can contest a will if they were engaged in a proceeding under the Family Law Act 1975 with the deceased when they passed away or had cause to bring a matter before Family Court.

Children of the deceased (including biological, adopted, stepchildren and “assumed children”) can make a claim against the deceased estate under specific conditions. If on the date of the testator’s death the child was a minor under the age of eighteen, an adult under the age of twenty-five who is a full-time student, or a child with a legally recognised disability, then they can contest their parent’s will. Adult children can only file a TFM claim if they can make a case that they are unable to support themselves financially.

The final categories of people who have the right to dispute a will are those who are in a registered caring relationship with the testator, and anyone who can substantiate a dependent relationship with the deceased.

Grounds For Contesting A Will

When someone is contesting a will in Victoria, the court can consider any factor they deem relevant while assessing the merits of a TFM claim. Chiefly of interest to the court are the testator’s state of mind, the relationship between the testator and the claimant, the finances of all parties and the character of the claimant.

Grounds For Contesting A Will: Testator’s State Of Mind

When assessing a claim against a deceased estate, the court will examine the will itself and any evidence of the testator’s state of mind when he or she drafted the document. Sometimes the testator includes an explanation for the type or size of a bequest, such as mentioning that one child receives a smaller inheritance because they have already been gifted a valuable asset during the testator’s lifetime, or specifying a larger portion for a dependent family member who relies on the testator’s support to maintain their standard of living.

Relationship Between The Testator And The Claimant

The court will assess the nature and duration of the relationship between the claimant and the testator. Estrangement is not grounds for disallowing a claim, but the court will take into consideration if there was regular contact between the parties. Any obligation that the testator had to provide for the claimant is also of interest in a TFM claim.

Grounds For Contesting A Will: Finances

Part of the assessment criteria in a TFM case is the size of the estate, and whether redistribution will negatively impact the provision for other beneficiaries. If the estate has significant liabilities then the court is less likely to entertain a claim from anyone except a spouse and minor child. The financial needs and resources of the claimant and any other beneficiaries or claimants also form grounds for contesting a will in Victoria.

The history of financial interaction between the testator and the claimant is also important. If an eligible claimant provided any financial contribution to the deceased’s estate (such as paying off debt or working in a family business) or in some way provided care for the deceased, then they have grounds for contesting a will.

Any financial support that the testator provided to the claimant prior to their death does not diminish the claimant’s right to more from the estate: in fact, it actually goes to proves that the claimant was dependent on the testator. A claimant should chronicle the type and extent of any maintenance that the testator provided, as the court will consider the nature and extent of any support in determining whether the deceased had a responsibility to provide for the claimant’s welfare.

Circumstances of the claimant

The court will examine the particular circumstances of the claimant, particularly those that impact their ability to provide for themselves financially. The court will note the age of the claimant and any mental, physical or intellectual disability that will hinder their ability to earn income or increase their cost of living. The conduct and character of the claimant may also have an adverse or beneficial effect on the claimant’s case.

The contested wills team at Armstrong Legal can advise you if you are not sure whether you have grounds for contesting a will in Victoria. We can also help you make a TFM claim against a deceased estate. Please contact our office to speak to one of our experienced solicitors about the particulars of your case. Call 1300 038 223 to discuss contesting a will or any other legal matter.

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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