Contested Estates + Expert Legal Advice

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Contested Estates + Your Estate Planning Lawyer

Written by: Karlene Wightman l Legal Team


A common question asked by our clients when giving instructions for a Will is “can I leave my Estate to whomever I choose?”  The simple answer is – yes!  You can gift the assets in your Estate to any person, charity or institution that you choose.  Our legal team will always tell our clients that it is your Will and you can do what you like with your assets.  With this advice, however, is a strong warning that your Estate can be challenged if you do not provide for the person(s) who have a legal right to benefit from your Estate when you pass away.

Estate Plan:

Part IV of the Administration and Probate Act 1958 (Vic) – Eligibility Requirements

A family provision claim is an application made to the Court (either the Supreme Court of Victoria or the County Court of Victoria) under Part IV of the Administration and Probate Act 1958 (Vic).  The application seeks greater provision to be made from the Estate of a deceased person to an individual(s) where they believe that inadequate provision was made for him/her.

In order to make a claim for greater provision, the individual must satisfy one of the eligibility requirements under the Act.  Broadly, these state that the person must be:

  • A spouse or domestic partner of the deceased; or
  • Child of the deceased (including an adult child); or
  • Step-child of the deceased (including adult step-child); or
  • A registered carer.

If the individual satisfies one of the above criteria, they also have to prove that:

(a) The deceased had a moral obligation to make provision for the individual (based on the eligibility requirements); and

(b) The provision made for that individual in the deceased’s Will was inadequate when taking into consideration their own financial situation.

If the individual satisfies all of these requirements, they are entitled to make a claim to the Court!

Unfortunately, sometimes the harder a person has worked in life to provide for themselves, the less likely they are to be entitled to a share of a family member’s estate if they have not been provided for in the Will.  It also depends on the other beneficiaries of the Estate and what their own financial position is at the time.

Legal Information When It Comes To Court…

County Court of Victoria-VS-Supreme Court of Victoria 

A number of factors are taken into account when determining which Court to file the claim.

Briefly, in order to be eligible to file in the County Court, the case must be relatively straightforward, have a trial estimate of five days or less and be appropriate for mediation by a private mediator.  In the County Court, there is also no opportunity to file supporting affidavits, all evidence must be provided orally.  The value of the Estate must also be less than $2.5M or the value of the claim must be less than $800,000.  Even if these factors are satisfied, a party still has no choice to file in the Supreme Court if they feel the process best suits their claim.  If however, the claim is filed in the County Court but the case does not fit the above criteria, any party may apply for a case transfer.

Step By Step: The Process

Commencing a claim involves an administrative process conducted by the solicitors engaged to any of the parties.  Once all parties have filed their intention to act with the Court (either the County Court or the Supreme Court), the Court will list the hearing for an administrative mention, which is a process where the parties come before the Court and discuss a timeline for the matter.  The parties are normally not required to attend the administrative mention, instead, being attended by their legal representative.

Legal Documents: The Evidence

If the matter is listed in the County Court, the parties file a two-page position paper outlining their case.  The parties exchange position papers before the conference and they do not have the opportunity to respond to the contents of the other parties position paper though.

If the matter is listed in the Supreme Court, the parties file an affidavit.  The plaintiff files their affidavit first, then the defendant (the Estate in question) files a responding affidavit.  Once both these are filed, the plaintiff has a further opportunity to respond, but ultimately – they do not have to.

The Legal Issues: Case Conference +/or Mediation

Usually, the first date listed by the Court is a Case Conference (County Court) or Mediation (Supreme Court)

Case Conference – County Court

In a case conference, the parties attend the County Court.  The parties legal representatives appear in front of a Judge and put the basic facts of their case forward and what each party is claiming.  The parties then break away to individual rooms and try to settle the matter at hand.  The legal representatives attempt to mediate the matter.  If the parties come to an agreement, the legal representatives appear before the Court and the judge makes the order.  If the parties cannot agree, the case will be set down for a trial date.

Mediation – Supreme Court

Mediation is a process used by the Supreme Court.  In mediation, the Courts attend a neutral venue booked by the Plaintiff’s legal representative.  All parties attend, together with their legal representatives.  An independent mediator is also engaged to attend.

The role of the mediator is to attempt to resolve the matter between the parties.  The parties initially come together in the same room.  The legal representatives put each of the parties’ cases forward.  The parties then break away to individual rooms, and the mediator moves between the rooms to attempt to negotiate a settlement.

By the time the parties have completed the case conference or mediation, the costs for each party are generally in the range of $20-$30k per side, plus on top of that the separate costs of administering the Estate.  If the parties do not agree to settle at this point, the costs can be astronomical and range anywhere starting from $100k – $150k and in some cases even ranging beyond that.

Legal Advice from Canny Legal

If you find yourself in a situation where you have not been provided for adequately in a family member’s Will, we can help you work through the necessary steps to determine whether you have a valid claim and that you have a clear understanding of the process and everything that is involved.

It is important to remember that it may also be the case that you, as the Executor, are shocked to find out that you could suddenly be embroiled in a legal battle.  Rest assured, we are here to take as much stress out of the process as possible.

There are many different areas of Estates that our team can offer expert Legal Advice on including Estate Planning to ensure that your wishes are clearly known and understood by all beneficiaries and the people involved.  Get in touch today to have a chat with one of our team if you have any questions or would like some advice.

Senior Lawyer Karlene Wightman standing centre in the picture with one hand on her hip wearing a light pink coloured sleeveless dress with a white and red coloured flower print

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