A will that leaves someone out, or gives them a smaller share than others receive, raises a narrow legal question. How to contest a will in Victoria is largely a matter of Part IV of the Administration and Probate Act 1958 (Vic), which allows an eligible person to apply to the Court for a family provision order. Three things decide whether that application is open to you: your relationship to the deceased as the statute defines it, the date of the grant of probate or letters of administration, and what the Court makes of the provision the will contains. This article takes those questions in that order.
What contesting a will means in Victoria
In Victoria, an eligible person may apply for a family provision order under Part IV of the Administration and Probate Act 1958 (Vic). The application does not ask the Court to set the will aside as a whole. It asks the Court to consider the statutory criteria, including whether the deceased had a moral duty to provide for your proper maintenance and support and whether the distribution of the estate failed to make adequate provision for you.
A challenge to a will’s validity, for example over capacity or the circumstances in which the will was prepared, is a different kind of proceeding. It carries different evidence and different timing. If that is your concern, or if the administration of the estate is the difficulty, it belongs in a wider conversation about wills and estate disputes.
Who is eligible to apply
Only an eligible person within the meaning of section 90 of the Act may apply. Subject to the statutory definitions and conditions, the categories include a spouse or domestic partner at the time of death, certain former spouses or former domestic partners, and a registered caring partner. They also include a child, which covers an adopted child and, in specified circumstances, a stepchild or a person who believed the deceased was their parent and whom the deceased treated as a child. Certain grandchildren fall within the categories, as does the spouse or domestic partner of a child who dies within one year of the deceased’s death. So does a person who was a member of the deceased’s household, or who previously was and would likely have become one again in the near future.
Eligibility alone does not guarantee an order. The criteria and the evidentiary requirements vary between categories, so two applicants in different categories may face quite different tasks in putting their position to the Court.
Siblings, nieces and nephews sit outside the categories on relationship alone. They may still qualify where they independently fall within another statutory category, for example as a registered caring partner or as a member of the deceased’s household who satisfies the statutory conditions. The family relationship by itself is not the test.
The six month time limit runs from the grant
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.
Time runs from the grant under section 99 of the Act, not from the date of death. That distinction matters, because a long period can separate a death from a grant, and the six months begins on the date of the grant whether or not an applicant has heard of it. Where the executor or administrator distributed estate property before the application, and did so without notice of the application, the Court generally cannot disturb that distribution. An estate that has been paid out is a different proposition from one the executor still holds, so establish the date of the grant early.
How to contest a will, step by step
The date of the grant is the first matter to establish. 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. 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. You may also ask the executor or the executor’s solicitor to provide copies.
Seeing the will
Section 50 of the Wills Act 1997 (Vic) governs access to the document itself. A person who has possession and control of a will, a revoked will or a purported will must allow the following persons to inspect it and make copies, at their own expense:
- any person named or referred to in the will, whether as beneficiary or not
- any person named or referred to in any earlier will as a beneficiary
- any spouse of the testator at the date of the testator’s death, and any domestic partner of the testator
- any parent, guardian or children of the deceased person
- any person who would be entitled to a share of the estate if the deceased person had died intestate
- any creditor or other person who has a claim at law or in equity against the estate and who produces evidence of that claim
A parent or guardian of a minor referred to in the will, or of a minor who would be entitled to a share on intestacy, also falls within that list.
What to work out next
The next question is which statutory category, if any, applies to you, because that determines what you will need to show. Records that describe your circumstances and your connection to the deceased are easier to gather early than late. 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.
If you are the executor of the estate
The same dates govern your position, for different reasons. 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 follow automatically. Where someone has raised or foreshadowed a claim, take advice on the timing of any distribution before you make it.
Hold with the estate file any correspondence recording what notice you have received, from whom and on what date. The question of notice turns on those dates.
Mediation and what happens before a hearing
Family provision proceedings are commonly referred to mediation or another form of court-facilitated dispute resolution before a final hearing. Mediation can occur before a proceeding is commenced, or during one.
Where a proposed compromise affects a minor or a person under a legal incapacity, approval under the applicable court rules is generally required before it becomes binding. The procedure depends on the court, the type of proceeding and the nature of the incapacity, so put the approval step in the timetable from the outset.
Frequently asked questions about contesting a will
Yes, in some circumstances. Eligibility under section 90 of the Administration and Probate Act 1958 (Vic) includes a person who was a member of the deceased’s household, or who previously was and would likely have become one again in the near future, subject to the statutory conditions.
Six months after probate or letters of administration are granted, in the usual case. The Court may extend time in limited circumstances, but an extension is not automatic.
The Court generally cannot disturb estate property that was distributed before the application, where the executor or administrator distributed it without notice of the application. For that reason, establish the date of the grant early.
No. These proceedings are commonly referred to mediation or another form of court-facilitated dispute resolution before a final hearing.
Working out how much time you have
Establish the date of the grant and work backwards from it. If the Court has already issued probate or letters of administration, that single date determines how much time remains and whether the estate is likely still to be intact. Where no grant has been made, you still have most of the preparation time, and the useful work is to confirm your category of eligibility and assemble the records that go with it.
Mazzeo Lawyers is a Melbourne litigation practice acting for clients throughout Victoria, including in wills and estate disputes. The Principal, Nick Mazzeo, began practising law in 1994, and the firm acts in matters before the Supreme Court of Victoria among other courts and tribunals. Every matter the firm acts in receives the time and personal attention of an experienced lawyer, and all enquiries are handled in strict confidence.
