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Contesting a Will

In Victoria, a person has the right to distribute their assets in any way they wish by preparing a written Will. However, if someone believes they’ve been unfairly provided for they may have grounds to challenge the Will in court.

Why someone would contest a Will

There are several reasons why a Will may be contested. These include:

  • someone the willmaker had a moral responsibility to provide for is missing from the Will or hasn’t been left an adequate share
  • the Will was made under the influence of others
  • the willmaker was not mentally sound or did not fully understand what they were doing when they signed the Will
  • the executor of the Will hasn’t carried out their duties properly
  • a more recent Will exists
  • someone has tampered with the Will

Read more about Wills.

Who can contest a Will

Any close relative who can show that the deceased had a moral duty to provide for them can challenge the Will. In some cases, a person who had a close relationship with the willmaker and who will face undue financial hardship because of their death may also lodge a dispute. Eligible relationships include:

  • the deceased’s spouse or domestic partner
  • a child, adopted child, stepchild or someone who considered themselves a child of the deceased
  • a former spouse or domestic partner with an unresolved Family Law claim
  • a grandchild
  • the spouse or partner of a deceased child
  • a person who is a member of the deceased’s household

If you’re not sure if you have the right to make a claim, a legal professional can offer advice based on your particular circumstances.

How do I contest a Will?

There are various types of claims that can be made against a Will in Victoria. A lawyer can recommend which best applies to you.

In Victoria, you have six months from the granting of Probate to challenge a Will. If you’re thinking of making a claim or want to find out if you’re eligible you should act quickly.

It’s also possible that your claim could be settled without stressful legal proceedings. A lawyer will assess your situation and guide you through the process, acting on your behalf if necessary.

FAQs

What does the court take into account in a Will dispute?

If you make a claim because you feel you’ve been inadequately provided for, the court will consider:

  • the willmaker’s reasons for distributing their assets as they did,
  • your relationship with the deceased,
  • whether the deceased had an obligation to provide for you,
  • your present and future financial resources and needs,
  • your age and if you have any physical, mental or intellectual disabilities,
  • how the other beneficiaries may be affected by a change to the Will, and
  • whether you were dependant on the deceased at the time of their death.
What if the deceased did not leave a Will?

Someone who dies without making a Will is known as dying ‘intestate’. In this situation, assets are distributed according to rules set out by state legislature without taking into consideration the specific circumstances of beneficiaries. If someone close to you has died intestate, we can offer you advice about your right to make a claim.

Can the time limit for making a claim be extended?

As long as the Estate remains undistributed, you can apply to the court for a time extension. It’s important to note that any assets distributed prior to the application cannot be changed.

How we can help

Contesting a Will can be complicated, but by working with us you can be sure your claim will have the best chance at success.

We’ll assess your situation and advise you on the ideal course of action. We’ll also investigate your options for settling out of court and negotiate on your behalf. If you do end up going to court, we can work alongside you throughout the process and represent you during mediations and at trial.

To find out more about contesting a Will, call us on 03 9824 5100 or email sdunn@madisonslawyers.com.au.

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