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Unfair Wills (Vic)

A testator should leave a reasonable and fair-minded will that adequately provides for their family and dependents. When a testator leaves an unfair will, certain people can make a Testator’s Family Maintenance Claim to the Supreme Court of Victoria. This article explains the legal options when someone is treated unfairly in a will.

What Is An Unfair Will In Victoria?

Legally competent adults in Victoria have testamentary freedom to decide who inherits their assets after they die. However, a fair will provides for the deceased’s spouse, de facto partner, minor children and dependents. There is also a general social expectation that a wealthy testator will provide for their adult children, even if they are financially independent of their parents. A testator should not only mention these people in their will but carefully work out a bequest that accounts for the beneficiaries’ immediate and future financial needs.

Examples Of Unfair Wills

Below are some of the situations where unfair wills may be made.

#1 Estrangement

Someone who is estranged from their child may feel justified in excluding that child from their will. It is common for parents to want to “reward” children who abide by their wishes and exclude or leave nominal provision for an estranged child. In fact, the law in Victoria considers the financial needs of a child to be more important than any estrangement. An estranged child can dispute an unfair will even if they had little or no relationship with their parent before their death.

#2 Fair vs Equal Distribution

Sometimes, a parent thinks that the fairest approach is distributing their deceased estate equally amongst their children. On the contrary, this is an example of an unfair will, as it fails to consider the children’s individual needs, who may have quite different financial needs. For example, the testator should provide more for a disabled child than a financially secure adult child. If a testator does not consider these factors, then the child can file a claim with the Supreme Court for further provision.

#3 Conditional Bequests

A testator can make a conditional bequest in their will so that someone only benefits when they fulfil the specified conditions. A beneficiary may find a conditional bequest unfair. Still, the Supreme Court has shown a reluctance to overrule this type of bequest unless the condition is illegal, impossible or against public policy. In Hickin v Carroll & Ors (No 2) [2014], a testator left an inheritance to all four of his children, on condition that they come to his funeral and be baptised as Catholic in the three months after he died. His children did attend his funeral, as requested, but were not able or willing to meet the second condition as they were Jehovah Witnesses. One of the children brought the case before the court, claiming that the conditional bequest was unfair given the lack of specificity and limited time frame. However, the court found that the bequest was not unfair as it did not breach public policy and was not against religious discrimination law.

Who Can Contest An Unfair Will In Victoria?

The Administration and Probate Act 1958 allows specific individuals to dispute an unfair will. These eligible people can make a Testator’s Family Maintenance (TFM) Claim for more provision from the deceased estate. In the past, anyone could contest an unfair will in Victoria. The Justice Legislation Amendment (Succession and Surrogacy) Act 2014 narrowed the list of eligible people to:

  • Spouse;
  • Registered or de facto partner;
  • A former spouse or partner who was commencing a Family Court proceeding against the deceased;
  • Biological, adopted or assumed child or stepchild under the age of 18;
  • A child under 25 who is studying full time;
  • A disabled child;
  • An adult child who is in financial need without the means to provide for their own maintenance;
  • A registered carer who is not the deceased partner or working for payment; and
  • A dependent grandchild or dependent member of the deceased’s household.

These new legislative rules prevent “fringe dwellers” from making a claim against the deceased estate.

Assessing A Claim In Victoria

The Supreme Court of Victoria asks certain questions to ascertain whether a will is unfair, such as:

  • What type of relationship did the claimant have with the deceased?
  • Is the applicant in financial need?
  • Did the testator have a moral duty to provide for the applicant beyond any existing provision?

Time Limits To Contest An Unfair Will In Victoria

An eligible person can only contest an unfair will in the six months following the issuance of the probate grant. After this deadline, it does not matter if the will is unfair. The Supreme Court may grant an exception and hear an out of time application, but the applicant must have a compelling reason for the delay.

In Victoria, the law allows some unfairly treated individuals to make a claim for a greater inheritance. You should consult a solicitor if you need advice about contesting an unfair will. The Armstrong Legal team can help you contest a will in Victoria if you are an eligible claimant with grounds to make a claim. Please get in touch today on 1300 038 223.

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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