Answers to frequently asked questions
Our People:
Can I contest a Will if left out or not adequately provided for?
Yes, you can make what is called a “family provision claim” against the estate for provision or further provision if what is provided is inadequate.
Who can challenge a Will?
In Victoria, the categories of persons who can challenge a Will or claim against an estate where there is no Will, is wide and includes:
- A husband or wife;
- A domestic partner or same sex partner;
- Children of the deceased and in some instances step children / grandchildren;
- Persons who were dependant on the deceased;
- Persons who the deceased was dependent upon such as a carer.
What do I need to show to succeed on my claim?
- Firstly, the court needs to be satisfied the Willmaker had a moral responsibility to make provision for you.
- A deceased wife, husband or domestic partner has a moral responsibility to properly provide for the other.
- A deceased parent usually has a moral responsibility to provide for his or her children.
- A deceased person who during his or her lifetime has assumed a moral responsibility to properly provide for someone may allow that person to succeed on his or her claim.
- Secondly, the court needs to be satisfied you have a financial need for provision/further provision as the case may be.
Is there a time limit on making a claim?
Yes, a claim should be made within six months from the grant of probate or administration of the estate. It is possible in certain circumstances to make a claim outside the six months subject to leave of the court.
Can I afford to make a claim?
Yes, you can. Most Will contests are settled at mediation and never go to trial which reduces the legal costs. We usually act “no win no fee”. If we agree to act “no win no fee” you would not need to pay any professional fees upfront. Further, if your case failed to settle and was lost at hearing you would not be liable to pay Galbally & O’Bryan any professional fees.