How To Stop Someone Contesting A Will (Vic)
A common concern for a testator is how to stop someone contesting a will. This is perhaps unsurprising given that almost half of all wills are disputed in Australia. In Victoria, there is no way to prevent someone from challenging the validity of a will or contesting the provisions of a will. Indeed, the Administration and Probate Act 1958 explicitly makes allowance for eligible people with sufficient grounds to make a Testator Family Maintenance Claim against a deceased estate. However, it is possible to draft a will to reduce the opportunity for dispute and clarify the intent behind the testamentary provision. In addition, a testator can structure their assets before their death to minimise the size of the contestable estate. This article outlines how to arrange an estate so that the testator’s wishes can be respected, even if it is not possible to entirely stop someone contesting their will.
What Does Contesting A Will Mean?
The Administration and Probate Act 1958 allows a limited list of people to file a Testators Family Maintenance (TFM) Claim to contest a will in Victoria. This type of claim is resolved either through private negotiation, mediation, or court hearing. The Supreme Court of Victoria can, after examining the facts of the case and submitted affidavits and evidence, choose to redistribute the deceased estate to benefit the claimant.
Grounds For Contesting A Will in Victoria
Each TFM claim is evaluated on its own merits, but a claim will only be successful if it meets three criteria: first, the claimant must be an eligible party; second, they must be in need of financial assistance; and, finally, there must be evidence that the deceased failed in their moral duty to make adequate provision for the claimant in their will.
Who Can Contest A Will in Victoria?
Victorian legislation prohibits everyone but those with appropriate standing from contesting a will. The Administration and Probate Act 1958 limits the list of eligible claimants to:
- A spouse, de facto or registered partner of the deceased;
- A former spouse or de facto partner who had grounds to take legal action against the deceased under the Family Law Act 1975 but was unable to proceed or finalise the case because of the testator’s death;
- Someone who was in a registered caring relationship with the deceased;
- A child (including a stepchild, assumed child, biological or adopted child) of the deceased who is younger than eighteen, a full-time student under twenty-five, or someone with a disability; and
- An adult child of the deceased who is experiencing financial difficulties.
How To Stop Someone Contesting A Will in Victoria
While it is not possible to eliminate all chance of someone contesting a will in Victoria, a testator can take steps to diminish the likelihood of it happening. Above all other factors, it is essential that a testator engage a solicitor to draft their will. A solicitor can advise their client on their responsibilities under succession law, and draft appropriate provisions to minimise the chances of a claim. Proper legal advice also ensures that a will is valid and legally binding.
One of the most effective ways to stop someone from contesting a will is to make provision for anyone who has a claim against the estate. An experienced solicitor will advise their client to draft their will in a “reasonably minded” fashion, as this is the test that the court will apply if a claim is brought before a hearing. The testator may also explain in the will the reason for specific bequests and show awareness and care for each beneficiary’s financial circumstances. This will allow for no ambiguity over the testator’s intent in case there is a claim against the estate.
If a testator wishes to “disinherit” one of their dependents, it will not be sufficient to state that this was the intention in the will. The law does not allow a testator to choose to disinherit his or her dependents.
In Victoria, a testator can take a different approach to estate planning by structuring their assets in such a way that the size of the contestable deceased estate is minimal. The assets that most easily lend themselves to this method are death benefits and real property. For example, a testator can sign a binding death benefit nomination so that the proceeds of a life insurance policy and superannuation benefit are paid directly to a chosen person. Additionally, a testator can make arrangements so that they own real estate and bank accounts jointly with their chosen beneficiary, ensuring that through a right of survivorship the joint owner becomes the sole owner upon their death.
A testator may also choose to make gifts to their chosen beneficiaries before their death, as this will ensure that the assets are not included in the deceased estate and thus not eligible for redistribution if someone contests the will. This approach also allows the testator to see the recipient enjoy their gift, and does not force the beneficiary to wait for probate to pass. It should be noted that a gift may effect the testator’s income support and taxation liability.
It is important to note that this approach to arranging an estate is less straightforward in jurisdictions such as New South Wales, where the concept of a Notional Estate operates.
The contested wills team at Armstrong Legal can assist you with any questions you have about estate planning or estate law in Victoria. Our experienced solicitors can advise you on how best to stop someone contesting your will or at least minimise the chances that your estate will be contested. Please call 1300 038 223 or contact our team without delay to chat with us about your case.