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Can A Niece Or Nephew Contest A Will? (Vic)

In Victoria, anyone writing a will has testamentary freedom. That means that a testator can choose freely how to distribute their assets after their death. However, succession law in Victoria also provides an avenue for eligible people to contest a testator’s decisions. Before the introduction of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014, a niece or nephew could more easily contest a will in Victoria. This article addresses whether a niece or nephew can contest a will in Victoria under the new succession rules.

Contesting A Will In Victoria

While a testator can choose to leave their estate to anyone they like, the Supreme Court of Victoria can overrule these decisions. An eligible person can lodge a Testator’s Family Maintenance (TFM) Claim if they are left out of a will, or even if they receive an inadequate portion of a deceased estate. A claimant makes a TFM Claim under section 90 of the Administration and Probate Act 1958, asking the Supreme Court to consider whether the testator’s will was reasonable in all the circumstances. A reasonable will provides for everyone that the testator was morally obliged to maintain and support. This provision must be proportionate to the size of the estate, the duty of the testator and the needs of other beneficiaries. Essentially, the court requires that a testator make reasonable provision in death for all dependents.

For instance, a testator could choose to leave their estate in Victoria to only one of their children, such as their most dutiful child. While this may make sense to a testator who wishes to acknowledge their child’s good behaviour, the law can overrule this decision to provide for a less compliant child in financial need. The court might disallow the testator’s wishes on the basis that a parent has a duty to provide for their children within their means.

Who Can Contest A Will In Victoria?

Before 2015, there were few limitations on who could contest a will in Victoria. The lack of restrictions meant that there were many frivolous claims against estates that were expensive to defend. As a result, executors often had to reward even baseless claims with “go away” money, as this was the cheaper alternative to defending the estate in a court hearing. The Justice Legislation Amendment intended to limit this free-for-all and prevent so-called “fringe dwellers” from making a claim.

Can A Niece Or Nephew Contest A Will In Victoria?

Under Victorian legislation, only those people in a close relationship with the testator would be eligible to contest a will via a TFM Claim. In some instances, a niece or nephew may be close enough to the deceased to be eligible to make a claim.

For instance, the legislation allows a registered carer of the deceased to make a TFM Claim. A niece or nephew may have devoted themselves to the care of the deceased, to the exclusion of earning an independent income. The court determines whether the relationship between the deceased and the carer rises to a duty to provide. It is important to note that a niece or nephew must be in a registered caring relationship with the deceased for no compensation.

Crucially, a member of the deceased’s household who was dependant on the deceased can contest a will in Victoria. A niece or nephew could be dependent on the deceased for the necessities of life (such as food, shelter and education). For instance, if the deceased’s niece was living rent-free in her aunt’s apartment, the niece may be eligible to contest her aunt’s will. However, it is important to note that the niece only has eligibility to make a claim. The court assesses whether the aunt owed her niece provision, given the size of the estate and other claims against the estate.

Time Limits for niece or nephew to Contest A Will In Victoria

An eligible niece or nephew can only lodge a TFM Claim within certain time limits. In Victoria, the time limit is six months after the Supreme Court issues the grant of probate. The court will only entertain a late claim if the claimant has a compelling reason for the delay. For example, the claimant may have a good excuse if they were unaware of the testator’s death or received incorrect legal advice.

Only a deceased’s closest family members can contest a will in Victoria. However, someone who was not the deceased’s immediate family can make a claim if they meet other eligibility requirements. As each situation is different, it is advisable to consult a solicitor if you think you may be eligible to make a claim. Please contact the contested wills team at Armstrong Legal with any questions on succession or probate matters or phone 1300 038 223 to make an appointment.

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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