Challenging An Estate – Your Rights + Obligations

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Challenging An Estate – Your Rights + Obligations

Written by: Karlene Wightman l Legal Team


Ever wanted to know if you have a leg to stand on when it comes to contesting an Estate?  Generally, a person will make a Will during their lifetime.  Their Will directs what is to happen to their Estate (money, property and personal chattels) upon their death.

We have previously spoken in great lengths about how to protect your Estate from being contested but what happens when the shoe is on the other foot and you want to know if you are entitled to make a claim?  It’s not as simple as wanting a piece of the pie from your mate down the road who lent you a whipper snipper three years ago, there are very specific requirements that you have to meet to be entitled to make a claim towards contesting someone’s Estate.

For starters, a Will is a private document.  It does not have to be shared with family members or friends before death and can be changed regularly to reflect the person’s current situation.  The consequences of this are that family members (or friends) can often be surprised and/or unsatisfied about the contents of a Will when the person passes away.  In some cases, this feeling is completely warranted.  It is for this reason that Part IV of the Administration and Probate Act provides an avenue for disgruntled beneficiaries to seek further compensation from a Will.  There are strict guidelines in place in relation to when a person is eligible to make a claim, which we will discuss below.

Eligibility Requirements + Expert Legal Services

When a person comes to see us at Canny Legal because they are unsatisfied with the contents of a family member or friends Will, the first question that we need to ask is “are you an eligible person within the meaning of Part IV of the Administration and Probate Act 1958 (VIC) (“the Act”).

The Act sets out several categories, however, the most common are:

  1. Spouse or domestic partner;
  2. Children (including adult children);
  3. Step-children (including adult step-children);
  4. A registered carer; and
  5. A person who is in an interdependent relationship with the deceased.

It is not enough for the person to have provided assistance to the deceased during their lifetime (i.e. assisting them with their daily living) or acting as their Power of Attorney.  They must be a registered carer.  Some really common examples are nieces and nephews or family friends who assist a deceased person during their lifetime but then are not provided for in their Will.  Unfortunately, unless they fall within one of the above categories, they are not entitled to make a claim against the deceased person’s Estate.

Once we have determined that you are an eligible person within the meaning of the Act, the next hurdle you need to satisfy is that:

  1. Did the deceased have a moral obligation to make adequate provision for the individual in their Will; and
  2. Is the provision made for that individual in the deceased’s Will inadequate when taking into consideration their own financial situation.

Legal Answers For The Tricky Questions

Section 91A of the Administration and Probate Act 1958 (VIC)

Unfortunately, just because you satisfy the eligibility requirements does not mean that you will be successful in your claim.  The Court needs to consider a number of factors when determining whether they should make further provisions.

Section 901A sets out the factors to be considered when making a family provision order as follows:

” (1) In making a family provision order, the Court must have regard to –

   (a) the deceased’s Will, if any; and

   (b) any evidence of the deceased’s reasons for making the dispositions in the deceased’s Will (if any); and

   (c) any other evidence of the deceased’s intentions in relation to providing for the eligible person.

(2) In making a family provision order, the Court may have regards to the following criteria – 

   (a) any family or other relationship between the deceased and the eligible person, including – 

      (i) the nature of the relationship; and

      (ii) if relevant, the length of the relationship:

   (b) any obligations or responsibilities of the deceased to –

      (i) the eligible person; and

      (ii) any other eligible person; and

      (iii) the beneficiaries of the estate;

(c) the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject;

(d) the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of – 

      (i) the eligible person; and

      (ii) any other eligible person; and

      (iii) the beneficiary of the estate;

(e) any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate;

(f) the age of the eligible person;

(g) any contribution (not for adequate consideration) of the eligible person to – 

      (i) building up the estate; or

(ii) the welfare of the deceased or the deceased’s family;

(h) any benefits previously given by the deceased to any eligible person or to any beneficiary;

      (i) whether the eligible person was being maintained by the deceased before that deceased’s death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased has done so;

(j) the liability of any other person to maintain the eligible person;

(k) the character and conduct of the eligible person or any other person;

(l) the effects a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries;

(m) any other matter the Court considered relevant.”

As you can see, all your personal circumstances (age, financial situation, relationship to the deceased), together with all other beneficiaries’ personal circumstances will be taken into consideration when determining whether you are successful in your claim.

It may seem overwhelming, but often these claims do not make it to Court and the resolved at mediation.  Want to know more about Contested Estates + Expert Legal Advice when it comes to getting a better understanding of the Court system?  We’ve put this article together, check it out here.

Avoid Legal Issues + Ensure Enough Time Within Which To Make The Application

If you feel that you should have been provided for in a person’s Will, you need to ensure that you visit a lawyer so that an application can be made within the relevant timelines.

A person has six (6) months from the date of the Grant of Probate (not death) to make a claim against the estate.

What If I Do Not Know What Is In The Will + Other Legal Information?

In some cases, relationships within the family are such that you have not seen the deceased’s Will and therefore do not know whether you are a beneficiary or not.  If this is the case, section 50 of the Wills Act 1997 (Vic) sets out who is entitled to see a copy of the deceased’s Will.

It essentially says that the Executor or Administrator must allow the following persons to inspect the Will (noting that they do not need to give them a copy):

”   (a) any person named or referred to in the WIll, whether as beneficiary or not;

(b) any person named or referred to in any earlier Will as a beneficiary;

   (c) any spouse of the testator at the date of the testator’s death

S.50(d) amended by No. 27/2001 s.3(Sch.1 item 14.4).

(d) any domestic partner of the testator;

(e) any parent, guardian or children of the deceased;

(f) any person who would be entitled to a share of the Estate if the deceased person has died intestate;

(g) any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the Estate of the testator if the testator has died intestate;

(h) any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produced evidence of the claim.”

Canny Legal + Your Legal Questions for Your Estate Claim

Claiming further provision from an Estate is a complex area and requires expert legal advice.

If you believe you are entitled to provision from an Estate, get in touch with our team to have a chat about the steps to get started on this process.

Pictured, Special Counsel Karlene Wightman standing with one hand on her hip wearing a vibrant pink dress

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