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How To Contest A Will (Vic)

Anyone who intends to file a Testators Family Maintenance Claim (TFM claim) in Victoria needs to understand the process involved in contesting a will. The Administration and Probate Act 1958 allows certain people who have a moral right to inherit to dispute the provisions of a will. This article outlines how to contest a will in Victoria and the steps that should be taken.

Preliminary Steps

Before anything else, a prospective claimant needs to acquaint themselves with the provisions of the will and the size and scope of the assets and debts contained in the deceased estate. As such, the claimant must first obtain a copy of the will from the executor or administrator of the estate. In Victoria, certain people have a legal right to access the will before it is probated, including, but not limited to close family members, beneficiaries of the current or previous wills, people entitled under intestacy law and anyone with a claim against the estate.

A claimant also needs to check that they are applying to the correct jurisdiction within the applicable time frame. A TFM claim can only be lodged with the Supreme Court of Victoria if the deceased was a resident of the state when they died, or if the deceased was the legal owner of real property located in Victoria. The application must be made within six months of the issuance of the probate grant.

Establishing Eligibility And Grounds To Contest A Will

The next step is for a prospective claimant to establish their eligibility and grounds to contest a will in Victoria. A person must be an eligible applicant to bring a TFM as defined in the Administration and Probate Act 1958. To be successful in their claim, the claimant must establish that the deceased had a responsibility to provide for their support or advancement and failed to meet this obligation.

Negotiate With Executor

Once a claimant has reviewed the will and established their eligibility and grounds to contest a will, they can proceed with the claim. A claimant needs to give the executor of the estate notice of their intention to file a TFM claim. The executor will then pause distribution of the deceased estate while the claim is examined. This is also an excellent opportunity to negotiate privately with the executor in the hope of reaching a settlement without proceeding with the court action. An executor is obligated to settle any manifestly valid claims against the estate so there is a high likelihood of resolving the dispute at this preliminary stage.

How To Contest A Will Through Mediation In Victoria

The other pre-trial way to negotiate a claim against a deceased estate in Victoria is through mediation. Once a TFM claim is filed, the court will order the parties to attend pre-trial mediation. Mediation is a common method of dispute resolution in contested will cases, where the two parties meet in a confidential setting to try and come to an agreement. The claimant and executor will attend the mediation with their separate legal representation, and a mediator will act as a neutral guide of the negotiation. Mediation is often held face to face but if that is not the most conducive method of reaching an agreement, other arrangements can be made including negotiating from different rooms through their legal representatives.

The mediator will listen to short statements from each side, explain the purpose of the mediation, detail the costs involved if the case proceeds to a court hearing and encourage the parties to use the opportunity to reach a settlement. If the parties reach a settlement at mediation, the terms of the settlement will be documented and signed in a binding agreement, and the claimant will receive the agreed-upon settlement. Alternatively, if the parties cannot come to an agreement, the Registrar will re-list the case before the court so that it can be allocated a hearing date.

How To Contest A Will At A Court Hearing

If an estate is to be contested at a court hearing, the plaintiff submits an affidavit to the court that outlines the relationship between the deceased and the claimant. The claimant needs to establish their own financial need for provision from the deceased estate, with reference to their assets, income and prospects as well as any liabilities and impediments that make it difficult to support themselves financially.

The defendant (in most cases the executor of the estate) will submit their own affidavit that will not only reply to the issues raised in the plaintiff’s affidavit but also set out a substantive case as to the reasonableness of the provisions contained in the will.

The court will examine the affidavits and any supporting evidence and assess the case against several factors, including:

  • The total value and nature of assets in the estate;
  • The financial circumstances of the claimant and the beneficiaries of the will;
  • The deceased’s moral responsibility to provide financially for the claimant;
  • The relationship between the claimant and the deceased;
  • The expectations of the community.

In the event that the court finds for the plaintiff, they can order that the estate be redistributed to provide a share, or greater share, for the claimant. The court will also make a finding as to who is responsible for the costs associated with the legal dispute.

If you are considering making a TFM claim against a deceased estate, the contested wills team at Armstrong Legal can advise you on whether you are an eligible party with grounds to contest the will. They can also represent your interests in mediation or court hearing. Please call our offices on 1300 038 223 to discuss your legal needs or make an appointment to talk with one of our team without delay.

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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