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Contesting a Will – Commonly Asked Questions

If you have been left out of a Will or if you believe you have been inadequately provided for, you may have rights and you may be eligible to contest it. However, before you contest a Will, there’s many things to consider and it’s vital to seek professional advice from an experienced estate dispute solicitor. Melbourne is home to Robert Wood and Associates, a team of legal experts with a proven reputation for helping clients with even the most complex Wills and Estates issues. Read on for our answers to a few commonly asked questions about contesting a Will.

What is the Difference Between Contesting and Challenging a Will?

Contesting and challenging are two very different things. When you have been left out of Will, or feel you have been treated unfairly, you can ‘contest’ it, which means you launch a family provision claim.

The most common reasons to contest include:

• Being left out of a Will
• Not receiving what you thought you were entitled to
• Not receiving what you were promised

Challenging a Will is where you question its validity, essentially claiming that that Will itself should be struck out. Common reasons for challenging a Will include belief that:

• the deceased did not have capacity when they signed their Will
• the deceased did not make their Will of their own free will or was under undue influence
• the Will has been tampered with
• there is a mistake in the Will

Who is Eligible to Contest a Will?

According to the Administration and Probate Act 1958 Sect 90, an “eligible person” is defined as:

(a) a person who was the spouse or domestic partner of the deceased at the time of the deceased’s death.

(b)  a child of the deceased, including a child adopted by the deceased who, at the time of the deceased’s death, was

• under the age of 18 years; or
• a full-time student aged between 18 years and 25 years; or
• a child with a disability.

(c) a stepchild of the deceased who, at the time of the deceased’s death, was

• under the age of 18 years; or
• a full-time student aged between 18 years and 25 years; or
• a child with a disability.

(d) a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased who, at the time of the deceased’s death, was

• under the age of 18 years; or
• a full-time student aged between 18 years and 25 years; or
• a child with a disability.

(e) a former spouse or former domestic partner of the deceased if the person, at the time of the deceased’s death—

• would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and
• has either—not taken those proceedings; or commenced but not finalised those proceedings; and is now prevented from taking or finalising those proceedings because of the death of the deceased.

(f) a child or stepchild of the deceased not referred to in paragraph (b) or (c).

(g) a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in paragraph (d).

(h) a registered caring partner of the deceased.

(i) a grandchild of the deceased.

(j) a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in paragraph (d) or (g)) if the child of the deceased dies within one year of the deceased’s death.

(k)  a person who, at the time of the deceased’s death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member.

If you are unsure of your eligibility to contest a Will, or you would like clarification or additional information, get in touch with trusted a legal professional.

What Evidence Does the Court Take into Consideration?

Some of the main evidence the Court will examine includes:

• The size of the estate
• The duration and nature of a relationship with the deceased
• Obligations or responsibilities the deceased had to the applicant
• The financial situation of the applicant
• Age of the applicant at the time of the hearing
• Contributions made by the applicant to improve the estate of the deceased
• Evidence of statements made by the deceased to the applicant prior to their death

Are There Any Time Limitations?

While timeframes may vary across different states and territories, in Victoria, you have strictly 6 months from the date that a grant of Probate is successfully made to contest a Will. In some exceptional circumstances an extension of time may be granted. However, the application for extension cannot be made after the final distribution of the Estate.

How Do I Begin Contesting a Will?

Family provision claims are commenced by filing an application in Court naming a defendant to the proceedings, this is usually the executor or administrator of the estate. If there is no executor or administrator in most circumstances you are able to nominate the beneficiary most entitled to the proceeds of the estate. In any circumstances, it is strongly advised that you seek professional legal advice before commencing proceedings. An experienced estate dispute solicitor will look at your information and determine whether you have a case, assist with providing all of the necessary documentation and ensure the claim is made within the appropriate time frame.

Let us Help You Contest a Will

As the legal experts Melbourne relies on, Robert Wood and Associates are here to help with any issues relating to Wills and Probate. If you believe you are entitled to more than you received or if you have been left out of a Will completely, get in touch with us today by calling (03) 9762 3877. The process may seem overwhelming, but our expert team is here to help you every step of the way and we will go above and beyond to ensure a successful and fair outcome.