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How to contest a will in Victoria

Also known as making a Testator’s Family Maintenance (TFM) Claim, contesting a will in Victoria comes with it a set of laws and regulations that differ from the rest of the country. While similar to some other states, it’s important to know how to represent yourself when you feel like you’ve been wronged. It is an essential and empowering tool to have.

This article will explore some of the details you need to know about when contesting a will in Victoria and how Gerard Malouf & Partners is here to support you through the process.

What does it mean to contest wills in Victoria?

The Supreme Court evaluates all TFM claims on a range of measures. The court will look at if the person making the claim is eligible to do so, if they’ve received adequate provision, and if the will is truly invalid. Your eligibility to contest a will is based on your relationship to the deceased and whether or not the testator had a moral duty to provide for you yet did not meet this agreement.

A TFM claim, in more legal terms, is known as a Part IV claim as part of the Administration and Probate Act of 1958. It highlights the legal responsibility a benefactor has to their beneficiaries. If the needs of the beneficiaries are not met as laid out in their agreement, then the claimant has the legal right to file against them. When someone files a claim against a will, the court will cease distribution of the deceased estate until all beneficiaries can agree as to how the case will proceed.

In addition to eligibility, the court will look for several other points to determine its verdict, as outlined in the Administration and Probate Act of 1958:

  • The financial circumstances of the claimant: This point can tell the court several things, such as if the claimant was relying on the deceased for financial reasons and whether the will is divided fairly based on need. For example, an estate may be divided among two siblings, but if one sibling is a millionaire and the other is barely scraping by, the latter would financially benefit more from a larger cut of the estate.
  • The relationship between the deceased and the claimant: The relationship between the deceased and the eligible person is a primary factor in informing whether the claimant is eligible to make a case. Direct beneficiaries do have rights to the estate, but if someone was very close with the deceased or played a significant role in their lives before passing, then they could be eligible for benefits as well.
  • The terms set out by the testator in their will: Details laid out in a legal will are the dying wishes of the testator. It informs the executor who should receive benefits and how much of the estate they are entitled to. These terms, however, may have been written at a time in the deceased’s life when they were not mentally capable of making changes,
  • The repercussions on the other beneficiaries if the will is changed: When property law is involved, and a will is changed in favour of the claimant, that means the other beneficiaries lose part of their entitlement to the estate. All persons mentioned in the will must be considered before changes are officiated.

 

Succession planning, or the planning that takes place to set up loved ones after you die, should be done only by someone who is of sound mind and body and finalised in free will. They should have what is known as testamentary freedom to write the will how they want. This means that the person writing the will should be doing so in good health and should not feel coerced or bribed into including someone in the will if they do not belong there.

If either of these is not aligned when the will-maker passes away and the will is distributed, then this provides grounds for contesting the will. But, if you’re not in the will, do you have grounds to challenge it?

Who can contest a will?

In a Part IV claim, certain people are allowed to contest a will if they meet specific criteria. No matter your relationship with the deceased, there are a group of people who can contest a will, including someone who is not a direct family member, and the courts will consider the claim:

  • Current spouse or de facto partner.
  • A former spouse or domestic partner if they have an open family law action case against the deceased.
  • A registered caring partner.
  • A child, adopted child, stepchild or assumed child.

 

The following list is a group that can be accepted by the court but will have a harder time proving their case and eligibility:

  • A dependent grandchild.
  • Someone who cohabitated with the deceased, helped around the household, or was likely to live with them in the future and dependent on the testator at the point of their death.
  • A partner or spouse of a beneficiary, if the beneficiary died within a year of the deceased.

 

Anyone outside of these two lists, like a friend, will need to prove why they are entitled to the estate. They would need to have been dependent on the deceased or provide written documentation from the testator that proves they were promised part of an estate.

The proceedings of a will dispute case rely heavily on proving eligibility and proof of entitlement. Working with a probate lawyer from Gerard Malouf & Partners can help you navigate the dispute landscape.

Court proceedings with an estate litigation claim

To be eligible to contest a will, you must lodge your claim within six months of when probate is granted. Probate is the legal sign off that the will of the deceased is legal and that the executor is free to distribute the estate. If you do not claim within this time, the court may only consider your case if there are extenuating circumstances.

However, it is best not to wait for the court to grant probate before seeking legal advice. As soon as you have concerns about the will or how your loved one passed away, you should speak with a dispute lawyer. After all of the deceased’s estate has been distributed, the proceedings become more challenging.

The first step you will take after speaking with your lawyer is to begin negotiations with the other beneficiaries to try and come to an agreement. If no agreement is reached, then you will enter into a mediation agreement where the conversation will be overseen by an appointed mediator. At this point, if no dispute resolution is reached, a judge will have to rule, an affidavit will need to be signed and your case will be argued in front of the courts.

If you win the case, the court will either appoint you the cash value of the estate assets or transfer the property to you from the deceased estate.

GMP Lawyers to help with your provision

Contesting a will in Victoria is not easy, but Gerard Malouf & Partners solicitors can help you every step of the way. With our help, you can grieve your loss while we help settle the details of your estate.

For no-obligation legal advice, contact us today.

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