Challenging A Will in Melbourne

Challenging a will and contesting a will are two different things. If a person challenges a will they are arguing that the will is invalid and that probate should not be granted. Probate is granted when the court has agreed that the will is valid and the assets can be distributed amongst the named beneficiaries.

A will can be challenged in the following situations.

Fraud

A will can be deemed invalid if fraud can be proven. Fraud can take many forms. The will may have been written but altered after it was signed, or the entire document may have been falsified. If you challenge a will on the ground of fraud you will need to supply evidence. This may involve enlisting the services of handwriting experts.

Undue Influence

Undue influence occurs when a will-maker is manipulated, deceived or otherwise coerced into leaving a significant portion of their estate to a person or excluding a person from their will. Undue influence can be difficult to prove and the burden lies with the challenger. The challenger must be able to supply proof that the final will was not an accurate representation of the deceased person’s true desires.

Undue influence can be proven if evidence can be you can supply that the will was made under suspicious circumstances. Suspicious circumstances may include:

• increased reliance on one person;
• changes to power of attorney;
• the vulnerability of the will-maker;
• revisions to bank access authorities.

The undue influence could also occur when there is a power imbalance between the will-maker and a second party, such as:

• teacher/student
• religious leader/member
• employer/employee
• doctor/patient

Lack of Testamentary Capacity

When a will is challenged on the grounds of lack of testamentary capacity, someone is arguing that the will-maker did not have the mental capacity to make or change the will. An argument that you may present would be that the deceased person didn’t understand the ramifications their final will would have on other surviving family members or those who were financially reliant on them. An example would be that the deceased was intellectually disabled and did not have had the mental capacity to make a will and therefore the will should be invalidated.

To succeed in this argument, you will need proof such as medical records that show that the person could not create a legally binding will.

Armstrong Legal’s Melbourne contested estates lawyers can provide advice about challenging a will based on lack of testamentary capacity.

Contesting A Will

When a person contests the will, they are agreeing that the will is valid but disputing the distribution of the estate. Will contests often arise because one or more family members feel the estate was not distributed fairly.  A will may also be contested because money was left for a particular purpose that is no longer relevant or practical, and family members cannot agree about what should be done with this money instead.

In Victoria, a person has only six months from the date probate is granted to initiate proceedings contesting a will. If you think you have grounds to contest a will, you should seek legal advice as soon as probate has been granted. You can contact the Supreme Court of Victoria to check if Probate has been granted.

Who Can Contest a Will?

The Administration and Probate Act 1958 (VIC) outlines that only an eligible person can contest a will. An eligible person as per Section 90 of that act is:

• a spouse or de facto partner of the deceased at the time of their death;
• a child or stepchild of the deceased who at the time of the deceased’s death was under 18 or a full-time student aged between 18 and 25 or a child with a disability;
• a person who for a significant portion of their life thought the deceased was a parent and was treated by the deceased as a natural child at the time of the deceased person’s death and is under the age of 18, a full-time student aged between 18 and 25 or a child with a disability;
• a former spouse or domestic partner who was in the process of taking proceedings against the deceased person and can’t finalise them because of the deceased person’s death;
• a registered caring partner of the deceased;
• a grandchild of the deceased; or
• a person who was a member of the household of the deceased at the time of their death.

How To Contest a Will in Melbourne

If you are eligible to contest the will, the first step is to determine whether probate has been granted. If Probate has been granted, then you should communicate your intentions to the executor of the will. In the majority of cases, the dispute will be resolved at this stage in which case an Armstrong Legal Melbourne contested estates lawyer can draft an agreement for you. If you and the other parties are happy with the agreement then you can sign it and the asset distribution will commence.

If you are unable to come to an agreement and decide to commence court proceedings, you or your lawyer will need to inform the Supreme Court that you are lodging a Family Provision claim.

Melbourne Family Provision Claims

In the majority of cases, a will is contested by a Family Provision Claim. The majority of these claims are brought by adult children of the deceased who believe that the will is not fair.

A family provision claim is an argument that a person deserves a larger portion of the deceased person’s estate. A person can also lodge a family provision claim if they are an eligible person who was excluded from the will – for example, a stepchild of the deceased person who was not included in the will or an estranged child who believes they are still entitled to a share of the state.

When determining whether or not the family provision claim is valid the court will consider:

• if the deceased person had an obligation to provide for the applicant;
• whether the deceased person adequately provided for the applicant while they were living;
• the applicant’s ability to provide for themselves;
• the applicant’s intentions for the estate; and
• the impact the claim would have on the other beneficiaries of the will.

How Our Melbourne Estates Team Can Help

If you think that a person has been inadequately provided for in a will, our Melbourne contested estates lawyers can assist you. Our team will determine whether there is a valid claim that can be made and advise you on all the possible outcomes

Armstrong Legal’s Melbourne contested estates lawyers will handle negotiations on your behalf using their experience and expertise to make the process as smooth as possible for you. They can be contacted on 1300 038 223 or you can send an email.

Get Critical Advice From Estate Litigation Lawyers

Melbourne-wide

Expert estate litigation lawyers Melbourne clients trust often enter the conversation when emotions run high and family dynamics shift due to the passing of a loved one. The Melbourne community recognises the distinct expertise needed in these legal matters, which concern disputes over wills and the complexities of handling Victorian Supreme Court proceedings.

The estate litigation process in Australia can be complex, and the financial stakes are high. It’s here that our estate conflict legal support becomes crucial. Armstrong Legal has a dedicated team of contested wills and probate lawyers specialising in these matters, assisting with everything involved in the legal process for estate litigation.

From our office in Melbourne, we’re ready to provide contested estate legal advice so you can feel secure in your next decisions.

Melbourne clients can get targeted help with will disputes.

Estate dispute lawyers across Melbourne offer clarity on will disputes. They assist clients in discerning whether their issue involves contesting a will, challenging a will or defending an estate claim in Victoria.

Knowing the difference is crucial as each pathway requires a specific approach. Contesting a will typically deals with arguing for greater provision from the estate, whereas challenging a will involves questioning its validity due to reasons like lack of testamentary capacity or undue influence.

Meanwhile, defending an estate claim demands a robust analysis of the estate’s current standing and the claimant’s arguments. These distinctions highlight why specialised legal guidance from estate litigation lawyers Melbourne residents rely on is key.

At Armstrong Legal, our Wills & Estates team focuses exclusively on this area of law.

This specificity offers clients directed support, honed by a deep commitment to this singular area of law. With this focus, Melbourne clients can access a suite of services tailored to will disputes. We deliver grounded advice without overstepping or underestimating the complexity of each unique case. 

Start conversations at our Melbourne office. Our consultations guide clients through family provision claims, will validity questions and estate claim defence. Talking with a knowledgeable estate litigation solicitor pinpoints the types of documents to gather and the potential avenues to resolve estate dispute matters.

In addition, early discussions reduce unnecessary conflict by identifying pertinent information early and focusing efforts on resolving the dispute. So when faced with uncertainty in will disputes, speaking to will dispute lawyers is crucial for understanding your legal standing and proceeding correctly.

Will disputes depend on eligibility, grounds and each party’s position.

Estate litigation and estate planning differ significantly. Estate litigation deals with active disputes that arise after a death. These disputes vary from disagreements about provision, validity and claims against the estate to practical issues about estate administration.

Due to their contentious and often complex nature, estate litigation matters require a different approach. The complexity, further compounded by state laws, emphasises the need for precise legal guidance from estate litigation lawyers Melbourne residents trust. 

You also have to consider whether you’re contesting or challenging a will. Both processes demand careful consideration of evidence and a thorough analysis of the law’s nuances, highlighting the need for comprehensive probate litigation services offered by contested wills and estate lawyers. 

Whatever the case, both executors and beneficiaries face specific challenges during disputes. Executors may need specific advice on maintaining the estate, addressing allegations and fulfilling their duties amid ongoing disputes.

Beneficiaries, conversely, might need to safeguard gifts left to them, especially if another party seeks greater provision or disputes the estate’s distribution. Spouses, children and eligible individuals may require help in formulating a claim, with the right strategy hinging on their connection to the deceased, personal circumstances and legal standing.

Strong representation starts with realistic advice.

Clear and realistic advice is the cornerstone of robust legal advocacy.

As reliable estate litigation lawyers Melbourne clients trust, we offer a thorough case assessment that allows us to examine every pertinent detail of a Victorian estate litigation case. We scrutinise the evidence, the claimant’s position and the strength of both the claim and defence.

This meticulous approach equips clients to gauge the merit of their case accurately. By assessing these elements, a will and estate dispute lawyer gives you an honest appraisal of the situation at hand.

A practical case assessment illuminates potential outcomes.

Evaluating the potential outcomes empowers clients to evaluate their next steps. And as estate litigation lawyers Melbourne residents depend on, we also provide estimates on legal costs and outline the legal processes that might follow, ensuring clarity from the outset. This insight is invaluable, as it allows clients to weigh their options with a clear picture of the possible financial commitments. 

We resolve matters in both discussion rooms and in courtrooms.

Some disputes lend themselves well to amicable resolution, while others might demand rigorous courtroom proceedings. The dispute’s nature and the conduct of the involved parties often dictate where resolution happens. Whatever the journey, our will contesting lawyers stand ready to offer calm, respectful advice, ensuring that legal timeliness and respect remain central.

Frequently Asked Questions (FAQ)

Can I contest a will if I was not a named beneficiary?

Yes, in Victoria, contesting a will without being a named beneficiary is possible, especially with the help of estate litigation lawyers Melbourne-wide.

You may initiate a family provision claim under the Justice Legislation Amendment (Succession and Surrogacy) Act of 2014. To pursue this, you must fall within an eligible category as defined by the Act. Proving your case involves demonstrating why the estate should provide more for you, considering your relationship to the deceased and your financial needs.

How long does an estate dispute typically take to resolve?

There’s no set timeframe for estate disputes in Victoria. Resolution periods vary greatly, influenced by factors like the estate’s size and the parties involved. 

To set your expectations as you search for terms like “Can you contest a will after probate,” you should seek a detailed assessment from estate litigation lawyers Melbourne clients can turn to, as they can assess your situation against the statutory deadlines and explain your options to you.

Is mediation required before contesting a will in Victoria?

Mediation is actively encouraged for Victorian will contests. With Testator’s Family Maintenance (TFM) claims, the court often pushes for mediation before hearings. Embracing this step can resolve disputes economically and swiftly compared to cases that need to be resolved in courtroom battles. 

Work with a trusted partner in contested wills.

Dealing with will disputes requires expert assistance from estate litigation lawyers Melbourne-wide. 

Armstrong Legal boasts a renowned team specialising in contested wills. Our lawyers excel in managing the complexities of contesting, challenging and defending wills within Victorian Supreme Court proceedings. We assess the evidence needed to contest a will, provide inheritance dispute legal help and guide you throughout the process as part of our estate litigation legal services.

Contact our team to learn more about your options today.