People contest a Will for several reasons. They may be beneficiaries, family members, or other parties with an interest in the estate who believe they did not receive appropriate provisions under a will. No matter the reason, it can be a complicated and emotionally taxing process. Therefore, knowing a few things is important before you lodge a Family Provision Claim.
Your eligibility to contest a Will
Before you take any legal action, consult with an experienced Wills & Estate lawyer from Whyte Just & Moore to understand your eligibility. To challenge a Will or seek a larger share of the estate, you must be eligible under the Administration and Probate Act 1958. People eligible to contest a Will in Victoria may include:
- A spouse or domestic partner (including same-sex) at the time of death.
- A former spouse or domestic partner who has not taken or finalised Family Law Act proceedings and is now prevented from taking them due to the deceased’s death.
- A registered caring partner who was in a registered caring relationship with the deceased at the time of death.
- Child, adopted child or step-child of the deceased.
- An assumed child who, for some substantial period of time, believed the deceased was a parent and was treated by the deceased as a child.
- A grandchild who may have been wholly or partly dependent on the deceased for support and maintenance.
- A person who was a member of the household at the time of the deceased’s death or had been a member in the past and would have likely in the future become a member of the household. The applicant must be wholly or partly dependent on the deceased.
Determining fair provision in a Will
The Courts consider various factors when deciding on a Family Provision Application, including:
- The deceased’s relationship with the applicant
- The value of the estate
- The applicant’s financial position, earning capacity and other personal factors such as their health
- Any contributions the applicant made to the deceased’s estate
- Any gifts or benefits the deceased gave to the applicant
Demonstrating a financial need for provision from the estate can be critical to the success of your application.
Timeframes to contest a Will
Being left out of a loved one’s Will or not getting the provision you were expecting can be a shock. You may be left reeling, trying to understand why. Whatever the reason for filing a Family Provision Claim application, it’s essential to seek legal advice as soon as possible. In Victoria, except in exceptional circumstances, you must start the proceeding to contest a Will within six months after the date of the grant of probate or administration.
Legal advice for contesting a Will
Will disputes are often contentious, requiring legal knowledge and skills to achieve a satisfactory outcome. Therefore, if you wish to make a Family Provision Claim, speak with WJM’s Wills & Estate lawyers about the right approach for your circumstances.
Each Will dispute is unique, so book in with Geelong’s Wills & Estate lawyers, WJM, to obtain specific advice for your circumstances. Call (03) 5222 2077 or email firstname.lastname@example.org to set up an appointment.