How Do I Challenge A Will?

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How Do I Challenge A Will?

Written by: Karlene Wightman l Legal Team


It’s one of the most common questions we are asked by our clients – “what are my rights when a loved one has passed away?”

When a loved one passes away, the initial reaction is obviously grief and sadness.  However, once the loss has been digested, the family (or close friends) often wonder what happens next.  When there is acrimony between family members, some individuals may be shut out from the process and wonder what the next steps are.  They may not even be privy to what is contained in the deceased’s Will.

Legal Issues: Do You Have the Rights To See the Deceased’s Will?

If a family member is being shut out from the estate process and has no idea what is happening, the first step is to contact a lawyer.  Specifically, a lawyer who specialises in the Wills and Estates area of the law, like our team at Canny Legal.  From there, the first question usually revolves around the Will of the deceased and obtaining a copy.

For a lawyer to be of some assistance, you need to have some idea of where the deceased’s Will might be kept (i.e. the name of the law firm, or if the Will is being stored at home, who the Executors are).  The Executors have a legal obligation to provide certain categories of people with a copy of the deceased’s Will.

Section 50 of the Wills Act 1950 (Vic) states that:

a person who has possession or control of a Will, a revoked Will or a purported Will of a deceased person must allow the following persons to inspect and make copies of the Will (at their expense):

(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;

(d) any domestic partner of the testator;

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

(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 produces evidence of that claim”.

If, once you have read the Will, you discover that you have not been provided for, or have not been provided for to the extent that you were expecting, we can discuss the next steps!

Time Limits for Contesting Wills

Many people feel incredibly guilty about contacting a lawyer soon after a close family member or friend dies.  While this is completely understandable, if you do suspect that you have not been provided for it is important to seek assistance from a lawyer sooner rather than later, as there are strict time limits associated with making a claim against an estate.

A person has six (6) months from the date of Grant of Probate to initiate a claim with the Court.  Therefore, the earlier you contact a lawyer, the earlier they can start the process to determine whether they are going to be able to help you.  If you contact a lawyer and the six months have already passed, or the lawyer cannot obtain all the information in time, it is incredibly unlikely that you would have any recourse.

Want to know more about Grant of Probate – what it is, when it’s needed and when you can apply for it?  Check out this recent article we put together: What Is Probate?  

Am I Eligible To Make A Part IV Claim?

So, you have contacted a lawyer and have obtained a copy of the deceased’s person’s Will.  The Will either does not provide for you at all or does not provide for you to the extent that you expected.  The next step is to determine whether you have grounds to make a claim against the Estate.

Part IV of the Administration and Probate Act 1958 (Vic) is the legislation that controls whether you have a right to make a claim against an Estate.

Firstly, you need to satisfy the Court that you are an eligible person.  While an eligible person has many facets, an eligible person generally means that you are a:

  1. Spouse or domestic partner of the deceased;
  2. A child or a stepchild of the deceased;
  3. A grandchild of the deceased;
  4. A registered caring partner of the deceased; or
  5. A person who, at the time of the deceased’s death, was a member of the deceased’s household.

If you are determined to be an ‘eligible person’ you have a right to initiate a claim in either the Supreme Court or County Court (depending on the size of the Estate).  However, before initiating that claim, your lawyer needs to consider whether the Court would be able to make a judgement for further provisions, taking into consideration a number of factors.  These factors are based on your personal circumstances, which would be discussed with you at the time.

Legal Information for the Next Steps?

If a lawyer considers that you are eligible to make a claim for further provisions, you may want to try to negotiate first with the Executors.  This is especially the case if the Estate is relatively small.  In some circumstances, Executors are happy to settle the matter before initiating a claim with the Court.  However, this must be balanced with the six-month time limit.

Initiating an Application

If the Executors do not negotiate, or you feel that they are unlikely to negotiate, you need to make an application to either the Supreme Court or County Court (depending on the size of the Estate) for further provisions.  The Court then sets out the process to resolve the claim.

The Court Process

The best outcome in terms of costs is if the matter is settled at mediation (for the Supreme Court) or a Case Conference (for the County Court).

This is based, however, on the parties agreeing to vary the Will so that the person not provided for (or under-provided for) receives a bigger share.  A judge is not at the mediation or case conference to order any agreement, and therefore if the parties simply cannot agree there is nothing that can be done to change minds.

If the matter cannot settle at the mediation case conference, the matter will be listed for trial and the Judge will decide what is fair and reasonable.

Canny Legal + Helping You To Contest A Will

While it may feel disrespectful to the deceased to seek a lawyer’s advice soon after a person’s death, being aware of the process and time limits could be the difference between successfully receiving a share (or a larger share) of the deceased person’s Estate or not.  It is important to know your rights and when and how you need to deal with the situation if and when it arises.

Get in touch with our team today if you feel that you haven’t been provided for in an Estate or you would like to have a chat to go over the process in more detail and how it would work for your circumstances.

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

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