Being left out of a will, or receiving substantially less than expected, does not automatically mean that a will can be successfully contested.
In Victoria, certain people may be entitled to seek further provision from a deceased estate under Part IV of the Administration and Probate Act 1958 (Vic). This is commonly known as a family provision claim, or sometimes a Testators Family Maintenance (TFM) claim.
The first question is whether the person seeking further provision is an eligible person under the legislation. Eligibility alone does not mean a claim will succeed. The Court must also consider whether the deceased had a moral duty to provide for that person and whether the estate makes adequate provision for their proper maintenance and support.
Understanding that distinction is important when considering whether there are grounds to contest a will.
What does it mean to contest a will?
The expression “contesting a will” is commonly used to describe a number of different types of estate disputes.
A person might challenge whether a will itself is legally valid, for example. That is different from accepting that the will is valid but arguing that it does not make adequate provision for them.
A family provision claim falls into the second category. The applicant is not necessarily arguing that the deceased’s will should be declared invalid. Instead, they are asking the Court to order that further provision be made for them from the estate.
Part IV of the Administration and Probate Act 1958 (Vic) governs these claims in Victoria. The Supreme Court of Victoria manages applications for further provision through its Testators Family Maintenance List.
Who is an eligible person in Victoria?
The Administration and Probate Act defines the categories of people who may be eligible to bring a family provision claim.
They include a spouse or domestic partner of the deceased and children and stepchildren of the deceased. The legislation also deals with certain former spouses or domestic partners, people who were treated by the deceased as their child, registered caring partners, grandchildren and certain members of the deceased’s household.
However, the requirements are not the same for every category.
Age, disability, dependency and the particular nature of the relationship with the deceased can affect whether a person falls within the statutory definition. For some categories, the Act also requires the person to have been wholly or partly dependent on the deceased for their proper maintenance and support.
It is therefore important not to assume that a particular family relationship automatically gives someone the right to make a claim.
The current categories and requirements are set out in Part IV of the Administration and Probate Act 1958 (Vic).
Can a spouse or domestic partner contest a will?
A person who was the spouse or domestic partner of the deceased at the time of death is included within the definition of an eligible person.
That does not mean the Court will automatically alter the distribution of the estate.
The Court must still consider whether the deceased had a moral duty to provide for the applicant’s proper maintenance and support and whether the distribution of the estate fails to make adequate provision for them.
The circumstances of the relationship and the applicant’s financial position can therefore remain important even where eligibility itself is clear.
Can an adult child contest a parent’s will in Victoria?
Potentially, yes.
Adult children are not automatically excluded from making a family provision claim simply because they are financially independent or over a particular age.
The legislation distinguishes between several categories of children. Children who are minors, certain full-time students aged between 18 and 25, and children with a disability are specifically addressed, while other children and stepchildren are included in a separate category of eligible persons.
For an adult child, however, establishing eligibility is only the beginning of the assessment.
The Court must still consider whether the deceased had a moral duty to provide for that person and whether adequate provision was made. The fact that someone is the deceased’s son or daughter does not, by itself, determine the outcome.
Can a stepchild contest a will?
A stepchild can fall within the statutory definition of an eligible person.
As with children of the deceased, the legislation contains different provisions depending upon matters including age and disability.
Because blended family relationships can be legally and factually complex, eligibility should be assessed according to the particular circumstances rather than assumed from the way family members described their relationship.
Can a former spouse or partner make a claim?
In more limited circumstances, a former spouse or former domestic partner may also be an eligible person.
The statutory requirements include circumstances involving a former spouse or domestic partner who, at the time of the deceased’s death, would have been able to take proceedings under the Family Law Act 1975 and had either not commenced those proceedings or had not finalised them.
This can create an important intersection between family law and estate law where a person dies before the financial consequences of a relationship breakdown have been resolved.
The circumstances need to be considered carefully, particularly where family law proceedings were contemplated or already underway at the time of death.
Can a grandchild contest a will?
A grandchild may be an eligible person, but the relationship alone is not sufficient.
For certain categories of applicants, including grandchildren, dependency upon the deceased can become a central issue.
The nature of that dependency and the relationship between the grandchild and deceased will need to be established on the evidence. A grandchild who had a substantial degree of financial dependence upon a grandparent may be in a materially different position from a grandchild who had a close relationship with the deceased but was financially independent.
The eligibility requirements should therefore be considered against the particular facts rather than assuming that being a grandchild is, of itself, sufficient.
What does the Court consider in a family provision claim?
Being an eligible person gives someone the ability to make an application. It does not establish that further provision should be made.
Under the Administration and Probate Act 1958 (Vic), the Court must consider whether the deceased had a moral duty to provide for the applicant’s proper maintenance and support and whether the distribution of the estate fails to make adequate provision for them.
The legislation provides for a range of matters to be considered in determining whether a family provision order should be made.
These can include the nature and length of the relationship with the deceased, the deceased’s obligations and responsibilities to the applicant and other beneficiaries, the size and nature of the estate, the financial resources and needs of those involved, and any disability affecting an applicant or beneficiary.
The Court may also consider the will itself and evidence concerning the deceased’s reasons and intentions in making provision, or not making provision, for the applicant.
The assessment is therefore considerably broader than asking whether the distribution under the will appears “fair”.
Does being left out of a will mean you have a strong claim?
Not necessarily.
A person may be deeply disappointed by the terms of a will and still not satisfy the requirements for a family provision order. Conversely, a person does not necessarily need to have been excluded entirely from the estate before a claim can arise.
The issue is whether the provision made for an eligible person is adequate for their proper maintenance and support in the circumstances, having regard to the statutory requirements.
This is why the size of the inheritance alone does not determine whether there is a viable claim.
The applicant’s circumstances, the size of the estate, competing claims upon the estate and the deceased’s relationship and responsibilities towards the relevant people may all be significant.
How long do you have to contest a will in Victoria?
Time limits apply to family provision claims.
Under the Administration and Probate Act 1958 (Vic), an application is generally required to be made within six months after the date on which probate of the will or letters of administration are granted.
The legislation gives the Court power to permit an application after that period in certain circumstances, but important restrictions apply.
For that reason, someone considering a claim should not assume that the relevant period begins on the date of death or wait until the estate is distributed before seeking advice.
The Supreme Court’s current Testators Family Maintenance Practice Note requires an application to identify the date of the grant and whether the application is being made within or outside the applicable time period.
We examine this issue in more detail in How long do you have to contest a will in Victoria?
Why obtaining advice early can matter
Estate disputes can become more difficult once an estate has been substantially or fully distributed.
Obtaining advice early allows the potential applicant’s eligibility to be considered, together with the strength of the proposed claim, the available evidence and the relevant time limit.
It can also provide a more realistic understanding of what is at stake.
A family provision claim is not simply an opportunity to renegotiate a will because a beneficiary is dissatisfied with the deceased’s decision. The legislation establishes particular requirements that need to be satisfied before the Court can intervene.
Understanding those requirements early can help determine whether a claim should be pursued and, if so, the appropriate way to proceed.
Advice on contesting a will in Victoria
Mazzeo Lawyers advises beneficiaries and other eligible people in will and estate disputes, including family provision claims under Part IV of the Administration and Probate Act 1958 (Vic).
We consider the applicant’s relationship with the deceased, their financial and personal circumstances, the terms and value of the estate, competing beneficiaries and the available evidence before advising on the options available.
Where a dispute can be resolved without a contested hearing, opportunities for negotiation should be properly considered. Where court proceedings are required, the claim needs to be approached with a clear understanding of both the legal requirements and the practical issues affecting the estate.
If you have been left out of a will, or believe that inadequate provision has been made for you, obtaining advice early can help determine whether you are eligible to make a claim and whether there may be grounds to contest the distribution of the estate.
