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Thinking of Challenging a Will? Here’s What You Need to Consider

Posted on: July 30 2020

Challenging a Will can be difficult.

Have you been left out of a will? Claims can be made for further provision from a deceased estate if relatives or loved ones believe that insufficient provision has been made for them. However, not everyone is entitled to challenge a Will.

To be entitled to challenge you must have an “interest” in the deceased estate. That means you must have either an entitlement in a previous Will or an entitlement on Intestacy (that is, if there is no Will) and you are entitled to a share of the deceased estate by way of the laws of your State.

The most common reasons for challenging the validity of a Will relate to:

  • Allegations of fraud;
  • Lack of mental capacity on behalf of the Will-maker;
  • Undue influence;
  • Forgery;
  • The Will-maker having lack of knowledge and approval of what is contained in the Will; and
  • The Will being incorrectly executed.

What are the time limits?

A challenge to a Will must be commenced in Court within six (6) months from the date the grant of probate was obtained (where the deceased person left a Will) or letters of administration (where no Will has been left). However, the Court may give an extension of time so long as the estate has not been completely administered.

What are the Will-maker’s obligations?

The Will-maker must make provision for any person for whom they had a ‘moral responsibility’ to provide for. In the case of de facto spouses and same-sex partners (now collectively called “domestic partners”), a claim may be made if insufficient provision has been made. “Domestic partnership” also includes relationships such as siblings who live together for a long time in a mutually supportive relationship.

How is a Will challenge made?

An application can be made in either the County Court or the Supreme Court of Victoria, but it cannot be brought in the Magistrates Court or VCAT.

Who is entitled to claim?

To make a successful family provision claim in Victoria, a person must have had either a blood or a close relationship with the deceased person and have received inadequate or no provision from the estate.

The list of eligible people in Victoria includes:

  • A spouse or domestic partner (this includes current or former partner if no property settlement is reached).
  • A disabled child of any age (this is subject to a definition of disabled).
  • A non-disabled child of the deceased who was under 18, or under 25 and studying full-time at the time of the deceased’s death.
  • A non-disabled child of the deceased who is over 25, or over 18 and not studying full-time.
  • A stepchild or adopted child in any of the above circumstances.

As part of its consideration, the Court will also look at whether and to what extent a claimant can provide for themselves.

How do the Courts approach the matter?

Where a Will does not provide for a person the deceased had a ‘moral obligation’ to provide for, the Court has the power to make an order that the estate provides for them. A claimant must prove the deceased should have made adequate provision for them in their Will but did not do so.

Factors considered by the Court in past cases have included:

  • The net value of the estate (its size after debts, funeral, testamentary, and other liabilities have been deducted), meaning if the estate is not big enough to be capable of redistribution, the action cannot succeed
  • The age, sex, and health of the applicant
  • Any gift, transfer, or other provision the applicant received from the deceased while they were alive
  • The closeness of the relationship between the applicant and the deceased.
  • Economic need of the applicant
  • The character and conduct of the applicant
  • Competing claims for provision by others.

We’re here to help

Challenging a Will can be complicated, expensive and time-consuming.

Our principal, Elizabeth Michael, is an accredited specialist in Wills & Estates and can advise you about potential challenges to a Will and the best ways to avoid issues when making your Will.

For a confidential discussion with her or another member of our team, reach out to us today. office@baysidewills.com.au; 03 9592 3356.

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