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Challenging a Will in Victoria

 

In Victoria, family provision claims made against a deceased estate are governed by the Administration and Probate Act 1958 (Vic) (‘the Act’).

Eligibility to make a claim

To be entitled to make a claim against an estate, a person must fall within the category of an ‘eligible person’ under the Act. While not exhaustive, the list of eligible person includes the following categories:

  1. The spouse or de facto partner of the deceased;
  2. A child or stepchild of the deceased who at the time of the deceased’s death was:
    1. Under the age of 18 years; or
    2. A fulltime student between the age of 18 and 25 years;
    3. A child with a disability.
  3. A former spouse or partner of the deceased, who at the time of the deceased’s death was eligible to issue proceedings in the Family Court pursuant to the Family Law Act 1975 (Cth);
  4. A child or stepchild of the deceased who is not otherwise referred to in category 2.
  5. A person who at the time of the deceased’s death was a member of the household of which the deceased was also a member of.

Time limits in making a claim

Strict time limits are imposed on potential applicants making an application to the Court seeking further and better provision from an estate. An application must be made within six months of the executor obtaining a Grant of Probate, or in circumstances that there was no Will left by the deceased, six months after the Administrator of an estate has obtained Letters of Administration.

The court will only allow for applications to be made out of time, if the claimant can prove to the Court that special circumstances apply that prevented a claim being made within time and that the administration of the estate has not been finalised.

Considerations of the Court

In determining whether to make an order for further and better provision from an estate, the Court may consider, among other factors, the financial resources and financial needs of the applicant, any other applicant and the other beneficiaries of an estate.

In order to be successful in an application for further and better provision from an estate, an applicant must prove that the deceased had a responsibility to adequately provide for the applicant’s proper maintenance and support, and that the provisions of the will or the terms of intestacy do not provide such provision.

In making a determination on whether to make an order for further and better provision from an estate, the Court may consider a range of different factors, including:

  1. The size and nature of the estate, and any estate liabilities;
  2. The financial resources (including earning capacity) and the financial needs of the applicant, any other applicant and the beneficiaries of the estate;
  3. Any contribution by the applicant to the building up of the estate or to the welfare of the deceased;
  4. The relationship between the applicant and the deceased.

Making a claim for further and better provision from an estate can be complicated, expensive and time consuming.

For advice on making a claim against an estate, or for estate planning strategies to best avoid a claim being made against your estate please contact our office. 

For further information or enquiry on the above, please contact us or sarah.slattery@nevile.com.au. Please see Sarah Slattery’s profile here.