Who can Contest a Will

Who can challenge a Will in Victoria?

In order to contest a Will or apply to the Court for a larger share of an estate, a person needs to be eligible to do so.  Amendments to the Administration and Probate Act 1958 commenced on 1 January 2015 creating eligibility requirements for family provision claims by specifying classes of persons eligible to apply for provision.

Persons eligible to contest a Will include:

  • Spouse or domestic partner at the time of death
    This includes a person married to the deceased at the time of death or a domestic partner whether registered or unregistered. In the case of an unregistered domestic partner, with no child of the relationship under 18 at date of death, there has to be two years of continuous living together before death on a genuine domestic basis.
  • Former spouse or former domestic partner
    The former spouse or former domestic partners must, as at the date of death have been able to take proceedings under the Family Law Act; not have taken Family Law Act proceedings, or else commenced, but not finalized those proceedings; and now be prevented by the death from taking or finalizing Family Law Act proceedings.
  • Registered caring partner
    A person in a registered caring relationship with the deceased must qualify under the meaning of the Relationships Act 2008 at the date of death.
  • A child of the deceased
  • An adopted child of the deceased

  • A stepchild of the deceased

  • Assumed child
    Any person who for some substantial period during the deceased’s life believed the deceased was a parent and was treated by the deceased as a natural child.
  • Spouse or domestic partner of a child, adopted child, stepchild, or assumed child of the deceased if the child of the deceased died within one year of the deceased’s death
    An applicant claiming under this category must have been wholly or partly dependent on the deceased for proper maintenance and support.
  • Grandchild
    A grandchild must have been wholly or partly dependent on the deceased for proper maintenance and support.
  • Member of the household
    A person who was a member of the household of which the deceased was a member at the date of death or a former member of the household who would have likely in the future become a member of the household. The applicant must be wholly or partly dependent.

Persons not specifically eligible to dispute a Will:

  • Parents, nephews/nieces, siblings, cousins, and carers can only bring a claim for family provision if they can qualify as a member of the household or as an assumed child.

The Court must be satisfied of the following before it can make a family provision order:

  • That the applicant is an eligible person
  • Dependency in certain cases as stated above
  • That at the time of death the deceased had a moral duty to provide for the applicant’s proper maintenance and support
  • That the applicant’s entitlements under the Will and/or intestacy fail to make proper provision for his or her proper maintenance and support.

Factors the Court must consider in making a family provision order:

  • The contents of the Will
  • Any evidence of the deceased’s reasons for making the dispositions in the Will
  • Any evidence of the deceased’s intentions in relation to providing for the applicant.

Factors the Court may consider in making a family provision order:

There are a numerous factors that the Court may take into account in considering such an order, some of which include:

  • the size and nature of the estate
  • any disabilities
  • and the competing needs of the other beneficiaries.

In determining the amount of provision the Court must look at:

  • the degree of the moral duty to provide for the applicant
  • the degree to which the estate fails to make provision
  • in certain cases the degree to which the applicant is not capable by reasonable means of providing adequately for his or her proper maintenance and support and
  • in certain cases the degree to which the applicant was wholly or partly dependent on the deceased at the time of the deceased’s death.

Our wills, estates and probate lawyers are located at both our Melbourne office and our Mount Waverley office, a South Eastern suburb of Melbourne.

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