What to Know About Contesting a Will

by | Sep 21, 2021 | Wills & Estates

If you feel as though you have been unfairly left out of a Will or have not received a share you think is adequate, you may be able to contest the Will.

When making a Will, people have what is known as “freedom of testation”, which is the freedom to choose to whom they wish to leave assets, however the law recognises that they may also have a moral duty to provide for certain people in their Will.

When an eligible person considers that have not been adequately provided for according to that moral duty, they may seek a ‘family provision order. These types of claims are known as “Part IV claims” or “Testator Family Maintenance” (TFM) claims.

What is a Part IV claim?

A Part IV claim is an application made to the court for an order for the proper or further provision from the estate. Such a claim assumes that the Will is valid but that the provisions in the Will do not take proper account of the moral duty the Willmaker had when deciding who gets what.

As given away in the name, the legal framework for seeking provision is set out in Part IV of the Administrative and Probate Act 1958 (Vic) (‘the Act’) which sets out who can bring claims, what the court must consider in deciding whether to make a family provision order and the relevant timeframes for making claims.

The 3 key criteria that an applicant must prove in a Part IV claim are:

  1. you are an eligible person as defined under the Act;
  2. the deceased, at the time of death had a moral duty to provide for your proper maintenance and support; and
  3. that distribution in accordance with the Will fails to make adequate provision for your proper maintenance and support.

Who is an ‘eligible person’?

Broadly, and subject to some exceptions, an eligible person includes:

  • a spouse of the deceased (current or if not divorced);
  • a domestic partner of the deceased;
  • a child (including some step-children) of the deceased or a person who believed themselves to be a child of the deceased and was treated as such;
  • a grandchild of the deceased who was financially dependent on the deceased; and
  • in some circumstances a person who was living with the deceased.

To be successful, you also need to prove that you are in financial need and if successful, the court will only make provision to meet those needs.  Therefore, the greater the level of financial dependence or interdependency with the deceased, the stronger your prospects and the value of your claim.

Considerations

As noted above, the law recognises that people have freedom to make their own decisions and the courts, will always respect a person’s wishes and not disturb them unless necessary.

  • In addition to the will and the evidence the deceased has left behind, the court will also consider things like: the nature of any relationship between the deceased and yourself;
  • any obligations or responsibilities the deceased owes to you, any other eligible person, and to the beneficiaries of the estate;
  • the size and nature of the estate;
  • any debts the estate is required to repay;
  • your financial resources, including your earning capacity and financial needs, of those of any other person eligible to make a Part IV claim, and of the beneficiaries of the estate;
  • any physical, mental or intellectual disability you or any beneficiary of the estate may have;
  • your age;
  • any contribution you may have made to the building up of the estate or the welfare of the deceased or their family;
  • any benefits you have previously been given by the deceased or to any beneficiary;
  • whether you were financially dependent on the deceased;
  • the liability of any other person to provide for your maintenance (eg your spouse or partner);
  • your character and conduct or that of any other person; and
  • the effects a Family Provision Order would have on the amounts received fr by other beneficiaries of the estate.

What do you need to do if you want to challenge a Will?

You need to act quickly as time limits apply. An application must be made to the court within six months of a Grant of Representative being made unless an exception applies.  It is imperative to seek expert legal advice as soon as possible to understand and protect your rights. At Nevett Ford, our wills and estate lawyers in Melbourne has a long history of acting on behalf of both those who have not been adequately provided for in a Will as well as executors and administrators in defending these claims.  If you have any queries at all in relation to contesting a Will, please contact us at 03 9614 7111 or email melbourne@nevettford.com.au.