The death of a loved one is often a difficult time that involves major decisions. In some cases, a person may believe they have been unfairly left out of a loved one’s Will or that they have not received adequate provision from the estate.
In other cases, there may be concerns about whether the Will itself is valid.
If you are considering disputing a Will, it is important to understand that there are different types of Will and estate disputes. The type of claim available to you will depend on your circumstances, your relationship with the deceased and the reason for the dispute.
Common Reasons for Disputing a Will
A Will may be disputed for several reasons. Some disputes concern how the deceased’s estate has been distributed. Others involve concerns about whether the Will itself is legally valid.
For example, a person may believe they have been unfairly treated or have not received adequate provision from the estate. In Victoria, an eligible person may be able to make a family provision claim if they believe the deceased did not make adequate provision for their proper maintenance and support.
Other disputes involve the validity of the Will. Concerns may arise about how the Will was prepared, signed or witnessed. For example, issues may arise if:
- The deceased did not have the required testamentary capacity when making the Will
- The Will was affected by fraud or forgery
- The deceased was unduly influenced by another person
- There are concerns about whether the Will was properly made or executed
Estate disputes can also arise for other reasons. These may include concerns about an executor or trustee, difficulties locating beneficiaries, or disputes about the administration of the estate.
What Is the Difference Between Challenging and Contesting a Will?
The terms “challenging” and “contesting” a Will are often used interchangeably. However, they can refer to different types of legal disputes.
| Type of dispute | What it involves |
|---|---|
| Challenge to the Will | Questions whether the Will is legally valid. This may involve testamentary capacity, undue influence, fraud, forgery or execution issues. |
| Family provision claim | Claims that an eligible person has not received adequate provision from the estate for their proper maintenance and support. |
Therefore, disputing a Will does not always mean arguing that the Will is invalid.
A challenge to the validity of a Will may involve evidence about the deceased’s capacity, the circumstances in which the Will was prepared or whether another person influenced the deceased.
By contrast, a family provision claim does not necessarily challenge the validity of the Will. Instead, an eligible person may ask the Court for further provision from the estate.
In Victoria, family provision claims are dealt with under Part IV of the Administration and Probate Act 1958 (Vic). The legislation sets out who may make a claim and the matters the Court can consider.
You can view the Administration and Probate Act 1958 (Vic) for the current Victorian legislation.
Who Can Dispute a Will in Victoria?
Not everyone can make a claim against a deceased estate. Instead, eligibility depends on the type of dispute and the person’s circumstances.
For a family provision claim in Victoria, the law identifies categories of people who may be eligible to apply. These can include certain spouses or domestic partners, children and stepchildren, former spouses or domestic partners in particular circumstances, grandchildren in particular circumstances, registered caring partners and certain members of the deceased’s household.
However, being an eligible person does not automatically mean that a claim will succeed.
The Court considers the circumstances of the deceased, the applicant and the estate. It then determines whether adequate provision has been made for the applicant’s proper maintenance and support.
A challenge to the validity of a Will is different. In that situation, the person bringing the challenge will generally need to establish the legal basis for arguing that the Will is invalid.
Is There a Time Limit to Dispute a Will in Victoria?
Yes. Time limits can apply to claims involving a deceased estate, and they can be strict.
For a family provision claim in Victoria, an application must generally be made within six months after the date of the grant of probate or letters of administration.
The Court can extend this period in certain circumstances. However, you should not assume that an extension will be granted. If you believe you may have a claim, it is important to obtain legal advice as soon as possible.
The relevant time limit is set out in section 99 of the Administration and Probate Act 1958 (Vic).
Different considerations can apply when challenging the validity of a Will. If you have concerns about whether a Will is valid, you should obtain legal advice promptly so the appropriate steps can be taken.
What Should You Do If You Want to Dispute a Will?
If you believe a Will is unfair or invalid, the first step is to understand what type of dispute you may have.
A lawyer can review the circumstances and explain whether you may have grounds to challenge the Will or make a claim against the estate.
It can also be helpful to:
- Obtain a copy of the Will and any earlier Wills that may be relevant.
- Identify the reason for the dispute, such as concerns about the validity of the Will or inadequate provision from the estate.
- Gather relevant evidence, including correspondence, financial records, medical information and other documents.
- Identify the estate’s assets and liabilities so you can understand the size and nature of the estate.
- Check the applicable time limits and obtain advice promptly if you believe you may have a claim.
Taking action early can be particularly important where there are concerns that estate assets may be distributed before a claim is made.
Can You Dispute a Will If You Have Been Left Out?
Being left out of a Will does not automatically mean that you can successfully challenge it.
However, depending on your relationship with the deceased and your circumstances, you may be eligible to make a family provision claim.
The question is generally whether the deceased made adequate provision for your proper maintenance and support. It is not simply whether you received the share of the estate that you expected.
Whether a claim is available will depend on the circumstances. This can include your relationship with the deceased, your financial and personal circumstances, the size and nature of the estate, and the needs of other beneficiaries.
What Evidence May Be Relevant to a Will Dispute?
The evidence required will depend on the type of dispute.
For a challenge to the validity of a Will, relevant evidence may include information about the deceased’s mental capacity, medical records, communications with lawyers or other advisers, previous Wills and the circumstances in which the Will was prepared and signed.
For a family provision claim, evidence about your relationship with the deceased, financial circumstances, living arrangements, health, contributions to the deceased or their estate, and your current needs may be relevant.
The value and nature of the estate will also be important when considering what provision, if any, may be appropriate.
In Summary
If you believe a Will is unfair or invalid, you may have options available to you. However, the appropriate legal action will depend on why you are disputing the Will and your relationship with the deceased.
A lawyer can help you understand whether you may be eligible to make a claim, assess the evidence available and explain the legal process and any applicable time limits.
How Irvine Lawyers Can Help
If you or someone you know needs legal advice about disputing a Will or making a claim against a deceased estate, Irvine Lawyers can assist.
For more information or to discuss your circumstances, contact Irvine Lawyers on (03) 9422 5439 or email [email protected].
Looking for an estate dispute lawyer in Melbourne? Irvine Lawyers has lawyers in South Morang and Warrnambool who can assist with estate disputes and related legal matters.
FAQs About Disputing a Will
Can I dispute a Will in Victoria?
Possibly. Whether you can dispute a Will depends on the type of claim and your circumstances. You may be able to challenge the validity of a Will where there are legal concerns about how it was made. Alternatively, an eligible person may be able to make a family provision claim if they believe they have not received adequate provision from the estate.
What are the common reasons for disputing a Will?
Common reasons for challenging the validity of a Will include concerns about testamentary capacity, undue influence, fraud, forgery or whether the Will was properly executed. A person may also make a family provision claim if they believe the deceased did not make adequate provision for their proper maintenance and support.
How long do I have to dispute a Will in Victoria?
For a family provision claim, the general time limit is six months from the date of the grant of probate or letters of administration. The Court can extend the time in certain circumstances. However, you should obtain legal advice as soon as possible rather than assume an extension will be available.
Can I contest a Will if I have been left out?
Being left out of a Will does not automatically mean that you can make a successful claim. Depending on your relationship with the deceased and your circumstances, you may be eligible to make a family provision claim. The Court considers whether adequate provision has been made for your proper maintenance and support.
Can I challenge a Will after probate has been granted?
Potentially. A grant of probate does not necessarily prevent a person from challenging a Will or making an eligible claim against an estate. However, different disputes involve different legal processes and time limits. Therefore, it is important to obtain legal advice promptly.
Can a child dispute a parent’s Will?
A child may be able to make a family provision claim in Victoria. However, being a child of the deceased does not automatically mean that further provision will be ordered. The Court considers the circumstances of the child, the deceased and the estate when determining whether adequate provision has been made.
What is a Part IV claim in Victoria?
A Part IV claim is a family provision claim made under Part IV of the Administration and Probate Act 1958 (Vic). It allows an eligible person to ask the Court for further provision from a deceased estate where the legal requirements for a family provision order are satisfied.