Challenging a Will Victoria

This is a guide to the main steps required for challenging a will in Victoria. You should obtain legal advice appropriate to your own situation and not rely solely on the contents of this page if you decide to contest a will in Victoria. The information provided herein is for information purposes only.

Challenging a Will in Victoria: What Does it Mean?

“Challenging a Will” also known as “Contesting a Will,” means that you are claiming that a deceased person has failed to comply with their duty to adequately provide for you on their death by leaving nothing, or not enough to you in their will or on their death.

By making a claim you are asking the court to Award you part of the estate assets.

If a person dies with a will, the claim is usually brought against the Executor of the estate, who is named in the will. If there is no will, then a similar claim is brought against the Administrator of the intestate estate.

For simplicity the contents of this page refer to challenging or contesting a will, but most of it also applies to contesting the Intestacy Rules, where there is no will.

Why Court Action is Usually Necessary to Contest a Will in Victoria

Most people who contest a will apply to the court. Some people may prefer to avoid the court system and if all the parties agree, they can arrange a mediation between them, out of court where the claim may be resolved.

However, it is often necessary to commence court proceedings, and after that is done most claims settle out of court, usually at mediation.

The court system provides a framework and systematic approach that means that, in the unlikely event that the claim cannot be settled by agreement the parties know that their rights to go to court are fully protected.

What Do You Need to Prove in Order to Successfully Contest a Will?

To succeed in Contesting the Will you need to prove the following:

1. That the deceased was domiciled in Victoria and had assets there
2. You are eligible to claim, by fitting into a category of “Eligible Person”
3. That the deceased had a duty to provide proper maintenance and support for you
4. That by providing less than you need to live comfortably and decently according to the standard of living that you have become accustomed to during the deceased’s lifetime (or by providing nothing at all), the deceased failed to provide proper maintenance and support for you.

Who is Eligible to Bring a Claim in Victoria: Eligible Person

Each State and Territory has different laws and categories of people who can claim. Many of the legal requirements vary between the States too.

Here are the categories of Eligible Person for Victoria. You should consult a specialist solicitor to confirm your ability to fit into a category. Sometimes the categories will allow you to claim even if it is not obvious from the list.

For deaths between 20th July, 1998 and 31st December 2014,

there were no set strict categories of people who were qualified to claim. So anyone who could prove that the deceased had an obligation to provide for them with which they did not comply, could often claim regardless of whether they were related.

For deaths on or after 1 Jan, 2015

The following categories can apply:
· The spouse or domestic partner at date of death
· a child, adopted child, step child or a “believing child” who at date of death is under 18 years old, a full time student 18-25 or under a disability. A “believing child” is one who believed that the deceased was their parent for a substantial period during the life of the deceased, and was treated by the deceased as a natural child of the deceased
· Child or stepchild or “believing child” not listed above (eg an adult)
· A former spouse/domestic partner who would have been able to take proceedings under the Family Law Act but has not taken or finalised those proceedings and is now prevented from taking those proceedings due to the death of the deceased
· And persons in the following categories who face an additional test:
· A registered caring partner
· A grandchild
· A spouse or domestic partner of a child of the deceased, where the child dies within 1 year of the deceased
· A member of a household of which the deceased was also a member at date of death;

For people in the last set of categories, the additional test is that the claimant must have been wholly or partly dependant at some time for their proper maintenance and support, and the court will also look at the degree of dependence at the date of death when making a decision. As well, the amount that the court may offer is limited to the amount necessary for the proper maintenance and support of the claimant and the amount Awarded must be proportional to the degree of dependency at the date of death.

More on Time Limits to Bring a Claim

To be eligible to contest a will or intestacy, you need to commence your claim within 6 months of the date the probate is granted.

If you are late you may lose all your rights, but sometimes the court will consent to your applying late. Ask a lawyer for advice.

CWPL can advise you if you think your claim may be late, and is experienced with making late applications.

Value of the estate

The size of the estate (i.e. the “pool” of money from which you can be paid) has an important bearing on the likely success of your claim.

Your lawyer can help work out the size and composition of the pool, taking into account the value of the assets the deceased owned when they died, and the debts they owed.

An experienced lawyer may be able to bring back into the pool, certain assets that were improperly disposed of by the deceased before their death.

How much am I likely to get from the estate?

Many factors are taken into account when working out how much the Court may order the estate to pay you, and each case is different.

In determining whether the deceased had provided proper maintenance and support for you, the court will look at factors such as:
· The value of the asset pool
· Whether the deceased has already provided for you during their lifetime, or promised to do so
· Whether and how much financial support and other contribution you made to the finances and welfare of the deceased during their life
· Whether you have financial need, and how much you need
· Whether you can meet that financial need from your own resources in the future
· What financial and other needs the beneficiaries named in the Will also have
· The terms the deceased put in their Will.

Additional tests apply to determine the amount that may be awarded to you: please ask CWPL for a preliminary assessment of your claim.

If you are successful with your claim, the court will usually make an award and order the estate to pay it as cash or as a transfer of property to you from the estate.

For a professional assessment of your potential entitlement for your Will Contest, ask CWPL.

We are highly experienced in contesting wills. In most cases, CWPL will not charge you a fee if we cannot help you.

Call us: we can usually answer most of your questions over the phone.

Who Pays the Legal Costs?

If there is a court hearing and you are successful or have a sufficiently strong case, the court will usually order the estate to reimburse you for the majority of the legal fees that you must pay to your solicitor.

If the case settles out of court, such as at a mediation, the estate usually includes some contribution to legal fees in the ‘settlement monies” they pay you.

Generally you are responsible for your own lawyer’s legal fees, whether or not you are successful in your claim. It is often possible to arrange a No Win No Fee plan, which will ensure that you do not need to pay any of your legal fees to your own solicitors that you are not successful in recovering from your claim.

If you select the right plan, this means you should never need to finance your legal fees from your own pocket, whatever the outcome of your claim.

Click here for information on No Win No Fee plans, and remember that CWPL offers an excellent plan, designed to suit the needs of its clients.

Financial Need

The amount you may be Awarded depends largely on the strength of the obligation that the deceased had to provide for you, and the financial need you have. As every claim is different, ask your solicitor for their opinion and recommendations.

The value of your assets, the level of debts you must pay, your income, your expenses such as living and medical expenses, and any future contingencies you may face are all taken into account.

The complexities of a claim mean that you should obtain an assessment from a solicitor who is experienced in challenging a will in Victoria.

[Click here for CWPL’s profile in this highly specialised area of work.]

When Should You Get Advice

As soon as you have any concerns, it is best to contact your lawyer. Do NOT wait until Probate has been granted and you have a copy of the will. By that stage you may have lost important rights, and damaged the strength of your case.

You need advice on whether you are eligible, how strong your claim is, how much you are likely to get, and how to minimise the risk of having to pay the legal costs.

Here at CWPL we often find that by the time people seek our advice, we find that it is too late to do anything.

You Should Contact CWPL Even If You have not Seen the Will

As soon as you have concerns, get legal advice. Even if you have not seen a will, and even if you do not know whether or not there is a will.

A competent lawyer can find out what the position is, sometimes saving you months of worry, and they can then take steps to protect all your rights.

Call the lawyers at CWPL today if you believe you are ready to contest a will in Victoria.

Our Victorian office is located at:

Regus Rialto
Level 27 South Tower
525 Collins Street
Melbourne, VIC

Phone (03) 6165 1118

Fax: (03) 8352 5321
Intl. Fax: +61 3 8352 4321