Who can contest a Will in Victoria? Eligibility and legal requirements
Contesting a will in Victoria can feel overwhelming, especially when you’re grieving and unsure where to begin. You might believe the Will is unfair or doesn’t reflect what your loved one intended and want to contest it. In this blog, we explain who can contest a Will, how the Court assess a claim, and why timing is critical.
Who can contest a Will in Victoria?
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 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.
- 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.
Children with ongoing support needs
Children under 18, full-time students aged 18 to 25, or children living with a disability may also qualify to contest a Will if they were reliant on the deceased for financial or personal support.
How the Courts decide
The two-part test: Moral duty and need
Courts follow a specific process when a Will is challenged. First, they ask if the deceased had a moral duty to provide for you. Next, they will examine whether the Will failed to meet that duty. This applies to every case of contesting a Will in Victoria.
The court doesn’t make decisions lightly. Instead, it looks at several factors, including:
- Your financial situation and earning capacity
- The size and value of the estate
- Your relationship with the deceased
- The needs of other beneficiaries
- Any medical or physical conditions
- Evidence explaining the choices made in the Will
Contesting a Will in Victoria is unique with each claim carefully examined by the Court. However, the main question is always the same: did the Will fail to provide reasonable support for the person challenging it?
Don’t delay: Time limits apply
To contest a Will in Victoria, you must apply within six months of probate being granted, except in exceptional circumstances. Otherwise, you may lose the chance to make a claim. For this reason, it’s best to act quickly.
Get legal guidance
The law can feel confusing, especially during times of grief. Therefore, a Geelong lawyer can explain your options clearly. They will assess your situation and prepare a claim based on your circumstances.
Without the right legal advice, you risk your claim being rejected by the Court. Because of this, it may be worth speaking to an experienced Geelong Wills & Estates lawyer.
Need support? Speak to a Geelong Wills & Estates lawyer
If you’re thinking about contesting a Will in Victoria, don’t wait too long. You have six months from the date probate is granted. Book an appointment with a Geelong Wills & Estate lawyer from Whyte Just & Moore to understand your rights and take swift action.
Our team of lawyers have helped local families since 1877. We listen, explain your options, and support you every step of the way. Contact Whyte Just & Moore to take action in contesting your Will.