Bayside Contesting a Will
Contesting a Will
Ensuring a Will Is Fair, Equitable, and Just
Contesting a Will
Challenging or contesting a Will can be a difficult, complex, and emotionally charged process. But, in some cases, it’s necessary.
While you don’t want to appear disrespectful to the recently passed or seem self-serving — you have the right to ensure that you’re treated fairly and equitably. Furthermore, if you believe that the Will was created under duress or confusion, consideration should be given to correcting any wrongs, confusion, or misconduct.
At Bayside Wills and Estates Lawyers, we will compassionately and professionally guide you through a Will dispute. Our experienced team of solicitors will help you navigate the legal complexities, assist you in understanding your rights, and strive to achieve a just outcome.
Contesting vs Challenging a Will
It’s important to understand that contesting and challenging a Will are distinct legal actions in Australia.
- A Will Contest arises when you believe you have been inadequately provided for in a will. In most cases, this includes those who feel they have a legal or moral claim on the deceased person’s estate — such as a spouse, child, partner, or dependent.
- A Will Challenge directly disputes the validity of the Will itself. Common grounds for a Will Challenge include a lack of testamentary capacity, allegations of undue influence, or improper document execution.
As part of our extensive Wills and Estates Litigation service, our lawyers provide expert guidance on contests and challenges.
Grounds for Challenging a Will
If you feel that a loved one’s Will isn’t valid — that is, you’re questioning the circumstances around how their Last Will and Testament was formed — there are generally three grounds on which you may challenge the document.
How To Challenge a Will
Challenging the validity of a Will is a complex and sensitive matter that requires substantial evidentiary support. To ensure a powerful case, you may need to collate extensive evidence — such as medical records, expert opinions, witness statements, digital communications, and financial documents.
Your first step towards a challenge should always be to contact an experienced Wills dispute lawyer. Acting on your behalf, they may initially lodge a probate caveat — a legal document that prevents the Court from making a grant of probate order until the validity of the Will is proven.
Then, you and your solicitor must present your case to the court. It’s essential that you clearly outline the reasons why you feel the Will should be deemed invalid. If this is successful, the estate will be distributed according to the terms of a previous Will — if there is one. Otherwise, asset distribution will follow the laws of intestacy.
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Grounds To Contest a Will
If it’s your belief the deceased person’s Will did not adequately provide for you, you could contest the document. In Victoria, this action is referred to as a Testator’s Family Maintenance (TFM) Claim — its aim is to request that the court alter the distribution of the deceased’s assets outlined in the Will.
Only specific individuals have the legal right to contest a Will — known as an eligible person. Furthermore, if you wish to contest a Will, you must show genuine financial needs that have been insufficiently addressed by the Will.
Who Is an Eligible Person To Contest a Will?
Across Australia, who is considered to be an eligible person varies from State to State.
In Victoria, you may be considered an eligible person if you are a:
- Current or former spouse, or domestic partner, of the deceased.
- Registered carer in a care relationship with the deceased.
- Child of the deceased under 18, or 18-25 engaged in full-time studies.
- Child of the deceased with disabilities.
- Stepchild or adopted child of the deceased.
- Adult child of the recently passed who is experiencing financial hardship.
- Presumed child of the deceased.
If you are eligible, the court will assess whether the deceased’s Will includes adequate provision for you. The determination of adequate provision depends on the specific circumstances of your case and the relative size of the estate.
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The Time Restriction on Contesting a Will
In Victoria, you generally have six months from the Grant of Probate to contest a will.
However, under certain circumstances, the Supreme Court may permit an extension beyond this period — if you can demonstrate that the estate would not suffer detriment due to the delayed claim and provide valid reasons for the delay.
It’s crucial to remember that if the estate’s assets have been distributed before a claim is filed — the ability to contest the Will may be severely compromised.
How To Contest a Will
If you wish to contest a Will in Victoria and make a Testator’s Family Maintenance (TFM) Claim it’s important to seek legal advice and guidance. At Bayside Wills and Estates Lawyers, our team will assist you with compassion and understanding — and offer our opinion on your likelihood of success.
While no two contests are identical, typically, they follow this procedure:
1
Preliminary Actions
First, you, as the claimant, must understand the size, scope, and intended distribution of the Will’s assets and debts — meaning you need to obtain a copy of the Last Will and Testament. You can get this from the Executor or Administrator.
Additionally, you must ensure you apply to the relevant jurisdiction within the required time frame. A TFM claim is only permitted in Victoria if the deceased was a resident of the state at the time of their death — or they owned property in the state. This claim must be lodged inside six months of the Grant of Probate.
2
Checking Eligibility and Grounds for a Contest
You must ensure you are eligible to make a claim. Once this is established, it is down to you — with the assistance of your solicitor — to show that the deceased person had either a legal or moral duty to provide for your support. And, that this requirement was not met under their current Will.
3
Speaking With the Executor and Mediation
Once eligibility is confirmed, you need to notify the Executor of your intention to contest the Will. The Executor should not distribute the estate until the contest is resolved.
This delay gives you an opportunity to negotiate possible settlement terms and avoid court action. It’s the Executor’s responsibility to address permissible claims against the estate — meaning that agreement can be reached in an out-of-court settlement.
Alternatively, the matter may be decided through mediation. As soon as a Testator’s Family Maintenance Claim is made, the court will order pre-trial mediation — with both parties meeting face to face to try to reach an agreement.
If common ground cannot be found, the Registrar will bring the matter to the court to obtain a hearing date.
4
Contesting a Will at Court
At court, you must provide evidence by way of an affidavit. It should describe your relationship to the deceased, your need for provision from the estate, and evidence that you were not adequately provided for in the Will.
Similarly, the defendant (the Executor) will also submit an affidavit. It will reply to the issues in your affidavit and attempt to demonstrate why the Will includes suitable provision.
The court will then assess the affidavits and additional evidence, considering numerous factors, including:
- Estate’s financial standing and asset composition.
- Financial circumstances of the claimant and Will beneficiaries.
- Past provisions — gifts or transfers made to the claimant by the deceased before their passing.
- Moral obligations of the deceased towards the claimant.
- Nature of the relationship between the claimant and the deceased.
- Other claims — other individuals making a contest.
- Behaviour of the claimant.
- Societal expectations regarding familial support.
5
Achieving a Successful Claim
If you are successful in your claim, the court has the power to order the estate to be redistributed to give you a portion, or a more substantial portion. Furthermore, they will decide who will address the costs for the litigation.
How Do I Protect My Will From a Contest or Challenge?
If you’re concerned that someone may contest or challenge your Will after you pass — you need to speak to an expert Wills and Estates lawyer. This is particularly important if you have any concerns about your cognitive ability or difficult family members.
At Bayside Wills and Estates Lawyers, we will help you create a robust Will — supported by evidence — that demonstrates its validity. This could include an in-depth assessment of your Testamentary Capacity and medical evaluations of your mental state — especially if you are showing preliminary signs of mental decline.
By following these proactive steps, we can significantly increase the likelihood that your wishes will be followed after your passing.
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Ensure Fairness and Equity With Our Expertise
Contesting or challenging a Will is legally complex and emotionally demanding.
At Bayside Wills and Estates Lawyers, our experienced team is committed to providing compassionate, expert guidance through this challenging time. As Will disputes are urgent, we recommend that you seek our legal advice promptly.
Our goal is to achieve a resolution that ensures your rights and fair treatment, while minimising the need for court involvement.
Justice — ensuring you’re treated justly and fairly.
Informed decisions — allowing you to decide whether to make a claim.
Expert guidance — a legal team proficient in contests and challenges.
Clear communication — complex legalities explained in understandable language.
Tailored advice — reflecting your unique circumstances.
Understanding — considerate guidance at a tough time.
Reassurance — safeguarding your Will against disputes.
Will Contests and Challenges FAQs
To contest a Will, you must be considered an eligible person and demonstrate that you were not suitably provided for by the deceased. As contesting a Will is legally complex, it’s important you seek legal advice promptly.
The price of contesting a Will in Victoria depends upon numerous factors, including:
- Case complexity.
- Size of the claim and estate.
- Litigation — whether the matter is resolved in mediation or court.
- Expenses — court fees, solicitor costs, and expert witnesses.
At Bayside Wills and Estates Lawyers, we guarantee fee transparency with no hidden costs.
Under the Administration and Probate Act, grandchildren are considered potential claimants against a deceased person’s estate. To successfully contest a Will, you must show dependency, the deceased’s moral obligation to give support, and a lack of adequate provision.
The specific circumstances of each case determine whether the court is satisfied to grant a claim and the appropriate level of benefit from the estate.
Will contests in Victoria must be made in either the County Court or the Supreme Court. The Magistrates Court and the Victorian Civil and Administrative Tribunal (VCAT) do not have jurisdiction over such matters.
Testamentary Trust Wills may still be contested.
In virtually all circumstances, a dispute can only be raised by an eligible person — typically a spouse or dependent of the deceased. If successful, this could mean that assets earmarked for the Testamentary Trust being used to satisfy a Family Provision claim.
Usually, a sibling of the deceased cannot make a contest claim. However, if they can show the court that they lived with the deceased and were wholly or partly dependent upon them — a contest might be considered.
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