Challenging a Will can be an incredibly confusing procedure to navigate. Especially if a loved one has passed away recently and you feel like you have not been adequately provided for in the Will.
Whatever your situation is, it is helpful to have a qualified family law specialist on your side. Get in touch with our Melbourne Estate Lawyers to see how we can take the confusion out of contesting a Will.
Contact us today and receive a completely free initial consultation so you can see if we are right for the job.
Your Most Common Contesting a Will FAQ’s
How does contesting a Will in Victoria work?
Any individual who can prove that the person who created the Will has a moral obligation to provide for them is eligible to contest the Will. Challenging a Will is started by initiating a Supreme Court process called ‘testator’s family maintenance’, otherwise referred to as TFM.
In most cases, the individual who is looking to contest a Will has to be closely related to the individual who has passed away.
Most circumstances dictate that this refers to a:
- A spouse or domestic partner
- A child or stepchild
- Someone that has been treated as a child by the deceased
- A former partner who has grounds to take legal action against the deceased but was unable to proceed with the case because of the deceased’s passing
It is possible that a registered carer or guardian can be eligible to contest a Will if they can prove that they were dependent on the deceased.
Then, the court will look at a variety of factors to reach their decision, including:
- Why the Will was created in the way that it was
- If the person who died had a moral duty to provide for the person contesting the Will
- If adequate compensation was provided for the applicant
- Whether the person contesting the Will has a mental, intellectual or physical disability
- How other people in the Will will be affected
- If the person was fully or partly dependent on the person who died
- What was the nature of the relationship between the applicant and the deceased
It is crucial that a person contesting a Will makes a TFM claim within 6 months of letters of administration being issued.
At Melbourne Law Studio, we’ve got your legal concerns covered. Book your free 15-minute consultation today to see how we can help.
Who pays the costs when contesting a Will?
When contesting a Will in Victoria, the outcome of the case usually determines how fees will be paid.
If there is a court hearing and you have been successful in challenging a Will, it is common for the court to order that the estate will reimburse you for most of the legal fees that you have accrued throughout the case.
If you are able to settle out of court, the estate will most likely attribute some contribution to your legal fees in the final settlement.
If you are unsuccessful in contesting the will, you will most likely be responsible for the entirety of your legal fees.
That is why it is crucial that you understand your options before starting the process, contact us today for your obligation-free, zero cost initial consultation to understand how we can help you.
What grounds are there for contesting a Will?
There are a number of reasons as to why someone would seek to contest a Will. Common ones include:
- The individual challenging the Will does not feel they were adequately provided for in the Will
- The deceased did not have the mental capacity to make the Will
- The Will was forged or was fraudulent
- The deceased was influenced when making the Will by external parties
Who can contest a Will?
People who can contest a Will are:
- The spouse or partner of the deceased
- The deceased’s children, including adopted children or stepchildren under the age of 18
- A child over the age of 18 who is a full-time student between 18-25 years
- A child of any age with a disability
- A former spouse or partner
- A grandchild
- A registered caring partner
When can a Will be contested? When can you contest a Will?
In Victoria, an individual has six months from the date that probate is granted to the executor of a deceased estate to contest the Will.
In special circumstances, you can attempt to contest the Will after the six month period, however, you need to make sure that the estate has not already been distributed.
Can a beneficiary contest a Will?
A beneficiary can contest a Will if they feel they have not been adequately provided for.
How to stop someone from contesting a Will in Australia?
In Australia, an eligible person is able to contest a Will. This means it can be incredibly difficult and complicated to set your estate up in a way that it can never be contested.
If someone is attempting to contest your Will, your best bet is to seek legal advice. Contact us today and we will advise you on the next best steps.
Can a Will be contested by a sibling?
If a sibling is dependent on the deceased in any way, then they would be eligible to contest a Will under Victorian law.