Can wills be contested? In Victoria the answer is yes, but the word “contested” covers two quite different kinds of proceeding, and the one that applies decides what follows: who may bring it, what the Court looks at, and how long you have. A person who believes the will did not provide adequately for them is in a different position from a person who believes the document itself should never have been admitted to probate. Beneficiaries, executors and family members often use the same word for both. Working out which proceeding is in question is the first useful step after a death where the will or its administration is in dispute.
Two different proceedings, often called the same thing
The first is a family provision application. In Victoria, an eligible person may apply for a family provision order under Part IV of the Administration and Probate Act 1958 (Vic). That application accepts the will as a valid document and asks the Court to adjust what the estate provides for the applicant.
The second is a challenge to the will’s validity, raising matters such as the testator’s capacity or the circumstances in which the document was prepared. A family provision application does not ask the Court to set the will aside as a whole. A challenge to a will’s validity, for example over capacity or the circumstances in which it was prepared, is a different kind of proceeding with different evidence and timing.
Who is eligible to apply for family provision
Only an “eligible person” within the meaning of section 90 of the Administration and Probate Act 1958 (Vic) may apply. The categories include:
- a spouse or domestic partner at the time of death
- a child, adopted child or stepchild, with further conditions attaching to some categories
- a former spouse or former domestic partner, in defined circumstances
- a registered caring partner of the deceased
- a grandchild of the deceased
- a person who is, or previously was, a member of the deceased’s household and satisfies the statutory conditions
A person is not eligible merely because they are the deceased’s sibling, niece or nephew. Such a person may still qualify if they independently fall within another category, for example as a registered caring partner or as a member of the deceased’s household. The criteria and evidentiary requirements vary between categories.
What the Court considers
Eligibility alone does not produce an order. The Court considers the statutory criteria, including whether the deceased had a moral duty to provide for the applicant’s proper maintenance and support, and whether the distribution of the estate failed to make adequate provision.
The criteria differ between the categories of eligible person, and so does the material needed to establish a claim. That is why an assessment of where an applicant stands begins with the category relied on, rather than with the terms of the will alone.
How long do you have to contest a will in Australia?
A family provision application generally must be filed within six months after probate or letters of administration are granted. The Court may extend time in limited circumstances, but an extension is not automatic.
Two features of that rule matter in practice. Time runs from the grant, not from the date of death, and a grant of probate or letters of administration in Victoria is made by the Supreme Court of Victoria, so its date is a matter of record. The Court also generally cannot disturb estate property distributed before the application, where the executor or administrator distributed it without notice of the application.
What to do while you work out where you stand
Given the time limits, a person who intends to make a family provision claim should notify the executor or administrator promptly and put the estate on notice of the intended claim. Giving early notice may help prevent the estate from being distributed before the claim has been addressed.
You may also be entitled to read the will. Section 50 of the Wills Act 1997 (Vic) requires a person who has possession and control of a will, a revoked will or a purported will to allow certain people to inspect it and make copies at their own expense. Those people include any person named or referred to in the will, any person named as a beneficiary in an earlier will, a spouse or domestic partner of the testator, a parent, guardian or child of the deceased, and a person who would be entitled to a share of the estate on intestacy.
Once a grant has been issued, a copy of the grant and the will admitted to probate may generally be requested from the Probate Office of the Supreme Court of Victoria, subject to the Court’s applicable access procedures and fees. The executor or the executor’s solicitor may also be asked to provide copies.
If you are the executor
An executor who receives notice of a claim is in a different position from one who does not. An executor who distributes estate assets despite having notice of an existing or proposed claim may lose statutory protection and may be exposed to personal liability, depending on the circumstances. That consequence does not arise automatically, and advice before distributing is the prudent course.
Where a beneficiary is a minor or a person under a legal incapacity, a compromise affecting that person generally requires approval under the applicable court rules before it becomes binding. The procedure depends on the court, the type of proceeding and the nature of the incapacity.
How these matters proceed
Many of these matters are resolved by agreement between the parties. Family provision proceedings are commonly referred to mediation or another form of court-facilitated dispute resolution before a final hearing, and mediation can occur before or during a proceeding. Where agreement cannot be reached, the application is determined by the Court on the statutory criteria.
Mazzeo Lawyers approaches these matters by taking the time to understand your situation and explaining the position as it stands, so that the decision about whether to make or respond to a claim is an informed one. All enquiries are handled in strict confidence.
Frequently asked questions
Usually not. The Court generally cannot disturb estate property distributed before the application, where the executor or administrator distributed it without notice of the application, which is why notice to the executor matters.
Not on the basis of being a sibling. A brother or sister must independently fall within a category in section 90, such as a member of the deceased’s household who satisfies the statutory conditions.
No. A family provision application accepts the will and asks the Court to adjust the provision made, while challenging validity is a separate proceeding with different evidence and timing.
Knowing where you stand
Establish whether a grant has been made and on what date, because a family provision application generally must be filed within six months after the grant, subject to the Court’s limited power to extend time. Read the will if you are entitled to see it, and identify which of the two proceedings your concern raises. Those points shape the decisions that follow for a beneficiary and for an executor alike.
Mazzeo Lawyers is a Melbourne litigation practice serving clients throughout Victoria, with particular experience in wills and estate disputes. An initial conversation does not commit you to anything.
If you would like to understand your position before deciding what to do, you can contact us to discuss the estate and the grant. Arrange a confidential discussion about your matter.
