Contesting a Will

Frequently Asked Questions

• How do I bring a claim?

  If your lawyer determines that your claim has a realistic chance of success, it is usual to approach the estate and give notice of the potential claim. You may then commence some informal negotiations in an attempt to resolve the claim without involving the Court.

  If the negotiations are not successful in resolving the claim, your lawyer will help you file a claim with the Supreme Court. The Court will set out a timetable for the application, which includes timeframes for filing evidence by both sides, a mediation of the matter, then a trial. Many claims settle at mediation. If this fails, the matter will be determined by the Supreme Court by way of a trial.

• What is a Part IV Claim?

  A Part IV claim, also known as a Testator Family Maintenance claim or Family Provision claim, may be brought against an estate during the estate administration process if an eligible person believes that adequate provision from the estate was not made for them under the terms of the Will or in accordance with the laws of intestacy.

  Persons eligible to bring a Part IV claim include:

  • A spouse or domestic partner of the deceased
  • A child of the deceased (including adopted children and stepchildren)
  • A former spouse or domestic partner of the deceased who would have been eligible to commence proceedings under the Family & Relationship Law Act 1975 (Cth)
  • Any person who was a member of the deceased’s household at the time of death.

  Beyond being an eligible person, there are a number of factors which are considered by the Court to determine if a person should receive further provision from an estate.

• What happens if a Part IV claim is successful?

  If a claimant is successful in establishing that the deceased did not adequately provide for them in their Will, the court may award the eligible person a portion of the Estate which is proportionate to the degree of dependency the eligible person had on the deceased. In determining this, the court may take into account contributions that the eligible person made towards the Estate of the deceased, and towards the deceased’s wellbeing prior to their death.

  Ordinarily, the costs associated with a Part IV claim are paid by the estate, particularly if a settlement can be reached between parties without the need for a hearing.  If the matter proceeds to a hearing and the claim is unsuccessful, then the claimant may have to pay the costs of litigation.

• What will the Court consider?

  It must be established that the deceased had a moral obligation to make adequate provision for you and that the provision made (either in the deceased’s Will or according to the laws of intestacy) was not sufficient.

  The Court must also take the Will into consideration, together with any expression in the Will (or other evidence of testamentary disposition and intention) which may have been included by the deceased in support of their decision. For example, some Will-makers write a letter which is stored with their Will which explains, from their perspective, their relationship with a beneficiary and their reasoning for leaving them more or less in their Will.

  The Court has the power to make a Family Provision Order for your proper maintenance and support, despite what the Will or laws of intestacy may say, based on:

  • The nature of the relationship between you and the deceased
  • The moral or financial obligations the deceased had to you and other beneficiaries (if any)
  • The financial resources of yourself and other beneficiaries
  • The size and nature of the Estate
  • How the Will or laws of intestacy fail to make adequate provision for you

  Other factors that the Court may consider when making such an Order include:

  • The age of all beneficiaries
  • Any disability or impairment suffered by yourself or other beneficiaries
  • Any financial support provided by the deceased to you, or received by the deceased from you, during their lifetime
  • Whether or not there is another person/s who owes you an obligation to provide for you in their Will
  • The impact such an Order would have on the other beneficiaries
  • Your character and conduct during the proceedings
• What are grounds for contesting the validity of Wills?

  A claim may arise against the estate of a deceased person if a person named in the Will (or a person named in a previous Will of the deceased) has grounds for challenging the validity of the last Will of the deceased.

  The grounds for challenging the validity of a Will include:

  • Testamentary capacity
  • Undue influence
  • Suspicious circumstances
• What is Testamentary Capacity?

  In order for a Will to be valid, the Will-maker must have had what is known as ‘testamentary capacity’ at the time of making and signing their last Will. A person will have testamentary capacity if they can understand the nature and import of a Will, the nature and value of their assets, recognise that there are people who may have a claim against their estate or an entitlement to provision, and have the ability to balance and weigh-up those potential entitlements.

  A Will-maker may have lacked testamentary capacity at the time they signed their most recent Will due to suffering from a disability or incapacitation. It is important that it can be shown that the Will-maker understood the nature of the act of making a Will, understood the extent and effect of disposing of assets in their Will, and was not suffering from impairment such as delusions, hallucinations, dementia or other disability which would have affected their capacity to prepare a Will.

  If it is determined that a person did not have testamentary capacity at the time they executed their last Will, that Will is deemed to be invalid, and the Will-maker’s previous Will (if any) will then take priority. If the Will-maker had no previous Will/s, the estate will be administered as if there was no Will (in accordance with intestacy provisions).

• What constitutes Undue Influence?

  It is an unfortunate reality that elderly people are often taken advantage of due to their frailty – this can result in a Will being prepared under undue influence or duress. To establish that the Will-maker was unduly influenced, it must be shown that the influence exercised over them amounted to coercion and put the Will-maker in a position that is contrary to their interests and wishes.

  Again, if a Will is determined to have been made under undue influence, that Will is deemed to be invalid.

• What might amount to Suspicious Circumstances?

  Wills are frequently challenged if there was a significant change made shortly prior to the Will-makers passing. For example:

  • A change was made in substantial favour of one person
  • A new beneficiary, not previously mentioned in a Will of the deceased or who had only recently entered the deceased’s life, is added to the Will as a major beneficiary
  • A beneficiary of the Will was instrumental in preparing the most recent Will.

  
  Circumstances surrounding the preparation of a Will can also be challenged if it is believed the deceased was suffering from alcohol addiction, old age, frailty, sickness, or if there had been sudden changes to their personality, habits and relationships.

  Concerns regarding the Will-maker’s knowledge or approval of the Will may also arise in the following circumstances:

  • The Will-maker suffered from a disability or impairment which would have made signing the Will impracticable or impossible but the document still bears their ‘signature’.
  • An Executor or primary beneficiary named in the Will acted as translator for a Will-maker with limited English skills.
  • The Will was only witnessed by people named in the Will as an Executor or beneficiary.

  
  Should the circumstances of the Will be sufficiently suspicious as to be determined that the Will-maker did not have proper knowledge or approval of the Will, it will be deemed to be invalid.

• How do I contest the validity of the Will?

  Upon obtaining advice from an experienced lawyer, if it is determined that there is evidence sufficient to prove that a Will was created without testamentary capacity, or under undue influence or suspicious circumstances, then with the assistance of your lawyer, you will take immediate action to challenge the validity of the Will by caveat or application to the Supreme Court.

  To challenge the validity of the Will, there are two options:

  1. If Probate of the Will has not been granted, you may file a Caveat with the Supreme Court of Victoria which temporarily stops Probate from being granted.
  2. If Probate of the Will has been granted and no Caveat has been filed, then you may file a Statement of Claim in relation to the Probate proceedings.

  In both proceedings, the Court will ask you to provide evidence and reasoning as to why the Will is invalid, and will ask the Executor/s of the Will to file documents in support of the validity of the Will. There must be significant and strong evidence to prove that a Will should be deemed to be invalid.

• What happens if the challenge is successful?

  If you successfully challenge the validity of the Will, then Probate of the Will will be revoked or denied. If there is a previous Will, then the terms of that Will may apply (if that Will is found to be valid), or if there is no previous Will, then the laws of intestacy apply.

  To find out more about the laws of intestacy, click here.