Victoria’s controversial contesting wills law hits trouble

Published 23 Sep 2014

Every state and territory around Australia is constantly reviewing contesting wills legislation to remove red tape and make it easier for family members to challenge.

However, a controversial Victoria law has come under scrutiny from the legal sector and the Opposition.

Under the law reform that was introduced to state parliament last month, parents, carers and adult children would be banned from contesting the will of a deceased person. This would be the case unless the party could prove in court that they were dependent on the deceased for their living costs or other associated reasons.

The move from the Victorian government seemed over the top, especially since many other state and territories allow adult children to contest a will. In NSW, for example, all family members can contest a will in Court to receive part of an estate that they weren’t allocated.

This law has also gained strong objection from the Law Reform Commission that believes the law is unfair to the family of the deceased.

In recent days though, it seems that common sense has prevailed and the government has slightly tweaked the legislation.

Attorney-General Robert Clark told the Herald Sun that the government is still considering changes to end the “free-for-all” over a deceased’s estate.

“The government is considering possible changes to better cover cases where a deceased person has failed in a duty to provide for an adult child who can’t adequately provide for themselves,” he said.

Mr Clark did state the changes would respect the will of the deceased, unless it failed to show adequate duty of care.

“Family provision rules should not be a backdoor for an adult child to challenge their parent’s will when they are perfectly capable of providing for themselves, simply because they think a parent should have left them more,” he concluded.

The opposition has said that they would support the other amendments to the Justice Legislation Amendment (Succession and Surrogacy Bill) 2014 if the government renounced the section in relation to adult children.

Who can contest a will in NSW?

If someone has finalised plans with friends and family and the will isn’t reflective of those discussions, then it is important to understand who can contest a will.

These people include:

  • A person married to the deceased at the time of their death
  • An individual who was living in a de facto relationship with the deceased when they passed (including same-sex partners)
  • Any children of the deceased person
  • Former wives or husbands (in certain circumstances only)
  • Any person who was at any time financially dependent on the deceased
  • A grandchild or any other individual who was a member of the household and dependent on the deceased
  • Any person who was living in a close personal relationship with the deceased at the time of their death

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