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.

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.

For further enquiry, please contact us.

Getting Married ?

 

 

We understand that there is a never-ending list of things to plan before getting married or entering into a lifetime commitment but have you thought about the important legal protections you and your loved one may need?

 Our services will help you in every stage of your relationship.

 Before starting your journey together, you should consider preparing a Binding Financial Agreement. This is especially important where parties bring unequal contributions to the relationship.

It can be a sensitive area, however it is much easier to discuss prior to entering a lifelong relationship and creates certainty of outcome should circumstances change in the future.

 We can also help you find the best options to protect assets in your relationship for you, your partner and other loved ones.

 Our Wills and Enduring Powers of Attorney package provide you with the documentation needed to ensure your wishes are known and can be honoured and reduce stress on your loved ones during difficult times.

 No one ever wants things to go wrong but with a plan in place you will be better equipped to deal with whatever life throws your way.

 In the unfortunate circumstance that something does happen, legal documentation is the last thing you want to have to deal with.  Thinking about your options now will save you heartache, time and money in the future. Let us advise you on important issues which are often overlooked in the lead-up to a lifelong commitment.

Please contact our office to discuss your options and to organise an initial meeting free of charge with one of our friendly team.

 

Can my step-child contest my Will?

The first hurdle to clear if someone wants to contest a Will is whether they are an ‘eligible person’ under the relevant legislation. A ‘step-child’ is specifically included in the list of such eligible persons in the law.

Seems straightforward? Think again. A recent case in the Supreme Court of Victoria (Bail v Scott-Mackenzie [2016] VSC 562) tackled the below thorny hypotheticals:

Hypothetical #1: what if you weren’t married to your partner? Does their child still count as your ‘step child’?

On the basis of the wording of the rest of the legislation, and the fact that it was drafted to reflect modern attitudes about relationships, the Court decided that a child is still considered a step-child even if the parent and their partner are in a de facto relationship, but not married.

Hypothetical #2: what if your partner, the biological parent of your step-child, died before you? Can your step-child still claim against your estate in this scenario?

On this question, the Court decided that a step-child can contest their step-parent’s Will if, at the time their natural parent died, they were in a still married or in a de facto relationship. In the recent case, this was decided even though the natural parent had died 15 years before the step-parent. If the married couple had divorced prior to the death of the natural parent, the step-child relationship would have ended.

It must be said that simply satisfying the ‘eligible person’ test isn’t a get out of jail free card for someone seeking to contest a Will. A claimant must also demonstrate, amongst other things, that the deceased had a moral duty to provide for them, and that they are in financial need.

So what?

The above case highlights a number of important factors in relation to estate planning for blended families:

  1. Ending a marriage or de facto relationship

If a married couple’s marriage has broken down irretrievably, as opposed to where the couple has separated with some hope of reconciliation, steps should be taken to obtain a divorce prior to death. Many couples simply don’t get around to it, notwithstanding that they may have finalised property matters between them through consent orders or a binding financial agreement.

While failing to divorce might sound harmless, as set out above it could make it easier for a step-child to contest a step-parent’s Will, and of course it also makes it easier for the spouse to contest the Will. Further, where the deceased failed to make a Will, the surviving spouse may be automatically entitled to a share of the estate, and even if they disclaim their interest, this usually has adverse tax consequences for the estate.

The situation is more complicated for those in unregistered de facto relationships. There are steps you can take, however, to more formally finalise your relationship.

  1. Thorough estate planning

It is crucial that partners in blended families carefully turn their mind to their estate planning. There are a number of mechanisms which can be used in Wills to assist in the wishes of the couple/step-parent being met, such Will contracts, or including reasons in the Will for leaving someone out.

Nevile & Co can assist you with all aspects of family law, including divorce or finalising a de facto relationship. We can also guide you, or you and your partner, through the estate planning process, ensuring that your unique familial circumstances and wishes are best accounted for in your Wills.

For more information about our family law services, contact David Dudderidge: david.dudderidge@nevile.com.au;

and for estate planning, contact Sarah Slattery: sarah.slattery@nevile.com.au.