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Challenging a Will

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Claims can be made for further provision from a deceased estate if relatives or loved
ones believe that insufficient provision has been made for them however, not everyone
is entitled to challenge the validity of a Will.

To be entitled to challenge you must have an “interest” in the deceased estate. That
means you must have either an entitlement in a previous Will or an entitlement on
Intestacy (that is, if there is no Will) and you are entitled to a share of the deceased
estate by way of the laws of your State.

The most common reasons for challenging the validity of a Will relate to:

 insufficient provision made for a spouse or family member
 allegations of fraud,
 lack of mental capacity on behalf of the Will maker,
 undue influence,
 forgery,
 the Will maker having lack of knowledge and approval of what is contained in theWill;
 the Will being incorrectly executed.

What are the time limits?

A challenge to a Will must be commenced in Court within 6 months from the date the
grant of probate was obtained (where the deceased person left a Will) or letters of
administration (where no Will had been left).

However, the court may give an extension of time so long as the estate has not been
completely administered.

What are the Will Maker’s obligations?

The Will maker must make provision for any person for whom he or she had a
responsibility to provide for. In the case of de facto spouses and same-sex partners
(now collectively called “domestic partners”) a claim may be made if insufficient
provision has been made. In addition “domestic partnership” is defined and includes
relationships such as siblings who live together for a long time in a mutually supportive
relationship.

How is a Will challenge made?

An application can be made in either the County Court or the Supreme Court of Victoria,
but it cannot be brought in the Magistrates Court or in VCAT.

Who is entitled to claim?

To make a successful family provision claim in Victoria under the Administration and
Probate Act, a person must have had either a blood or a close relationship with the
deceased person and have received inadequate or no provision from the estate.
Currently, Victorian legislation provides that any person who believes that a deceased
person owed a responsibility to make provisions for them in their Will can challenge the
Will on the basis that it does not adequately provide for them.

However new legislation to commence on 1st July 2015 defines who is an “eligible
person” and has the ability to challenge a deceased person’s estate. The list of eligible
people brings the State into line with other Australian states in providing a list and this
includes:

 a spouse or domestic partner (this includes current or former partner if no
property settlement is reached);
 a disabled child of any age (this is subject to a definition of disabled);
 a non-disabled child of the deceased who was under 18 or under 25 and studying
full-time at the time of the deceased’s death; and
 a non-disabled child of the deceased who is over 25, or over 18 and not studying
full-time, and who was wholly or partly dependant on the deceased for their
maintenance and support at the time of the deceased’s death.

Note that an adult child who is not disabled and who was not dependent on the
deceased at the time of their death is not an “eligible person” and therefore cannot seek
to challenge their parent’s estate!

From the other perspective Will makers who have an adult child that they do not wish to
make provision for will benefit from the new legislation. For them there will be no
ongoing concern about the risks of not making provision for an adult child, unless the
child was dependant on the deceased or is disabled.

The Courts power’s and approach

The court also has power to make a maintenance order out of the estate where
insufficient provision has been made in the Will for any person that the deceased had an
obligation to provide for, including close family members.

A person can apply for a share or an increased share in an estate if they can show the
deceased had a responsibility to make adequate provision for them in the Will for their
proper maintenance and support and did not do so.

The principles considered by the Court in past cases have included:

 The net value of the estate, namely, its size after debts, funeral, testamentary,
and other liabilities have been deducted. Therefore, if the estate is not big enough
to be capable of redistribution, the action cannot succeed
 The age, sex, and health of the applicant
 If the applicant received any gift, transfer, or other provision made by the
deceased during their life
 How close the relationship was between the applicant and the deceased person
 The financial resources of the applicant. An applicant will be entitled to provision
only if an economic need for provision can be shown.
 The character and conduct of the applicant

Conclusion

Challenging a Will can be complicated, expensive and time consuming. Legal advice
should always be sought, particularly as there are time limits and the definition of
entitlement has been recently changed.

Depending on the strength of the case, we may be able to undertake the case on a nowin no-fee basis, or alternatively discuss with you the estimation of our costs. Should
you require some advice and would like to have a confidential discussion with us, call us
on 03 9387 2424 or email info@rrrlawyers.com.au today and see how we can help.

Posted in: Conveyancing and Property Law, Family Law, Wills & Estates