Who can contest a Will in Victoria?
Our People:
Contesting a Will - Can I make a claim?
To contest a Will in Victoria in seeking a share or a larger share of an estate you must be eligible to do so.
On 1 January 2015 the eligibility requirements were amended in setting out classes of eligible claimant. These are set out in Section 90 of the Administration and Probate Act 1958 (Vic).
Who can contest a Will in Victoria?
Persons eligible to contest a Will include:
- (a) Spouse or domestic partner (includes same sex) at the time of the deceased's death
- (b) Child/step-child
- (c) Person who for a substantial period during the deceased's life believed the deceased was a parent and was treated as a natural child of the deceased
Note for (b) and (c) above, in determining the amount of provision, the Court must take into account the degree to which the person is not capable by reasonable means of providing adequately for his or her proper maintenance and support.
(d) A child, adopted child, step-child, or quasi-child who at the time of the deceased's death was-
- Under 18 years; or
- A full-time student between 18 and 25 years; or
- A child with a disability
(e) A former spouse or domestic partner of the deceased if the person would have been able to take proceedings under the Family Law Act 1975 and either -
i. Has not taken them; or
ii. Commenced but not finalised them; and
iii. Is now prevented from taking/finishing them due to the deceased's death
(f) A registered care partner
(g) A grandchild
(h) A spouse/domestic partner of a child, step-child or quasi child - if the child, step-child or quasi child dies within one year of the deceased's death
(i) A person who at the time of the deceased's death is (or had been in the past and would likely in the near future had the deceased not died) to again become a member of the household of which the deceased was also a member.
Note: for (f)-(i) above, these categories are only eligible to contest a Will if the Court is satisfied the person was wholly or partly dependent on the deceased for his/her proper maintenance and support.
Threshold requirements for the court to make an order for provision include:
- The claimant must be an eligible person
- The deceased having a "moral duty" to provide for the eligible person's proper maintenance and support
- The distribution of the estate failing to make adequate provision for the proper maintenance and support of the eligible person having regard to their financial circumstances and needs
Factors the court must consider in making an order for provision include:
- The contents of the Will
- Any evidence of the deceased's reasons for the dispositions in the Will
- Any other evidence of the deceased's intentions in relation to providing for the eligible person
- The degree of moral duty
- The degree to which the distribution of the estate fails to make adequate provision for the proper maintenance and support of the eligible person having regard to their financial circumstances and needs
Factors the court may consider in determining the amount of provision to order include:
- The size and nature of the estate
- The financial resources including earning capacity and financial needs of the eligible person and the named beneficiaries
- Any disabilities
Get advice from our expert Will challenge lawyers
What you need to know is whether you can claim and have a case.
We offer free phone/first consultation advice and act "no win no fee".
Our contest Wills lawyers Andrew O'Bryan and Carl Wilson will review your case and provide clear, easy to follow advice and take action to give you the best case outcome.
We are located in Melbourne, Dandenong and Pakenham.
Andrew O'Bryan
Galbally & O'Bryan
Lawyers
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533 I M 0400 469 704
E aobryan@galballyobryan.com.au
Carl Wilson
Galbally & O'Bryan
Lawyers
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533
E cwilson@galballyobryan.com.au
Melbourne Office
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533
E enquiries@galballyobryan.com.au
Dandenong Office
Shop 9/147-151 Foster Street
DANDENONG VIC 3175
T (03) 9769 2510
E dandenong@galballyobryan.com.au
Pakenham Office
Shop 1, 15 John Street
PAKENHAM VIC 3810
T (03) 5941 7990
E pakenham@galballyobryan.com.au