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How binding is a last Will & Testament?

Where there is a valid Will in place, unless a claim in made against the estate and the Court finds that the deceased had a moral responsibility to provide further and better provision to the claimant, the deceased’s testamentary intentions will govern the disposition of the deceased person’s property, both movable and immoveable.

The validity of a Will can be challenged for a number of reasons, including an allegation that the deceased Testator did not have capacity to make the Will at the time that it was executed, or there was undue influence brought to bear on the deceased when they were making their Will.

Under the Administration and Probate Act 1958 (Vic), strict rules apply as to how, when and by who a claim can be made against a deceased estate. In Victoria, a claimant has six months form the date that the Grant of Probate or Letters of Administration was granted to make an application to the Supreme Court of Victoria, though in limited circumstances an extension of time may be granted to a claimant.

Only eligible people, as defined by the Act can bring a claim against an estate. These categories of person include, but are not limited to:

  1. The spouse or domestic partner of the deceased;
  2. A child of the deceased, including an adopted or stepchild;
  3. A former spouse or domestic partner who would have been, at the time of the deceased’s death been in a position to take proceedings under the Family Law Act 1975 (Cth), and has not commenced those proceedings or not finalised proceedings that are on foot at the time of death.

A starting point to any claim made against a deceased estate is that, despite the regime under Part IV of the Act, that a testator retains freedom of testation. To override the deceased testator’s freedom to depose of their estate as they wish, the Court must be satisfied that:

  1. Firstly, with respect to the claimant, the deceased testator had a responsibility to make provision to them in their Will;
  2. Secondly, if yes, did the distribution of the estate make adequate provision for the proper maintenance and support of the claimant; and
  3. Thirdly, if no to the second point, what, if any, further provision should the Court order for that claimant.

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