Contesting a Will

The loss of a family member or close relative can be one of the most emotionally devastating times in a person’s life at the best of times. However, the feelings of grief that you go through following the death of a loved one can be made worse when you realise that the Will appears not to be in terms that you believe your loved one would have created, or in circumstances where you have not been adequately provided for in that person’s Will, or not at all.

The same can be said when your loved one passes away without a Will and those persons whom you believe should not benefit from the estate, become entitled by law, to a share in that person’s estate.

 

The loss of a family member or close relative can be one of the most emotionally devastating times in a person’s life at the best of times. However, the feelings of grief that you go through following the death of a loved one can be made worse when you realise that the Will appears not to be in terms that you believe your loved one would have created, or in circumstances where you have not been adequately provided for in that person’s Will, or not at all.

The same can be said when your loved one passes away without a Will and those persons whom you believe should not benefit from the estate, become entitled by law, to a share in that person’s estate.

In Victoria, the Administration and Probate Act 1958 (Vic) provides an avenue whereby persons who have concerns regarding a Will, can apply to the Supreme Court in order to challenge, or otherwise alter the Will. These situations include:

  1. Where a person did not have the requisite testamentary capacity to make a Will at the time the Will was signed by them.
  2. Where it is alleged that the person made their Will under the influence of other persons (and hence, not of their own free will).
  3. Where a person believes they are entitled to a portion or greater portion of the estate than they received under the Will (Testators Family Maintenance Claim)

Should your claim be successful, the Supreme Court may make a number of orders regarding the effect of the Will or otherwise, alter the distributions as contained in the Will in favour of the claimant.

Lack of Testamentary Capacity:

Under the Administration and Probate Act 1958 (Vic) a beneficiary of an earlier Will can commence proceedings in the Supreme Court to challenge a Will in circumstances where they believe that the deceased lack the requisite testamentary capacity to make a Will at the time they signed the Will. Testamentary capacity refers to a person’s ability to understand the nature and effect of making a Will, a person’s moral obligations to provide for loved ones and a person’s capacity to understand the impact their decisions will have on their loved ones.

In order to be successful, the claimant must establish to the Court that the Will maker lacked the requisite testamentary capacity to make a Will at the time the Will was signed. This can be established by way of medical evidence or other evidence that establishes that the person was not able to understand the nature and effect of a Will.  

Undue Influence Claim:

A beneficiary of an earlier Will can challenge a Will if they believe that the deceased’s Will does not reflect the deceased’s true wishes as a result of being unduly or unreasonably influenced by a third party. It is important to be aware that challenging a Will on the basis of undue influence can be difficult to prove. This is because it is often quite difficult to prove that the deceased’s Will was the result of the undue influence by a third party such that the deceased’s Will was no longer made of their own free choice; that their Will was so overwhelmed that they had no option but to make the will in the terms that they did.

Testators Family Maintenance Claim:

A person who feels as though they have been left without adequate provision from an estate may be eligible to apply to the Supreme Court to contest a Will under the Testators Family Maintenance List. Two basic requirements must be satisfied in order to commence proceedings:

  1. You must be ‘eligible’ as defined in s 90 of the Administration and Probate Act 1958 (Vic); and
  2. Feel as though you have not been adequately provided for in a Will, if at all.

There are a number of factors the Court will take into consideration when determining a Testators Family Maintenance Claim. These are listed in section 90A of the Administration and Probate Act 1958 (Vic).

Each individual case is different and so if you feel as though you have been disadvantaged as a result of not being adequately provided for in a loved one’s Will, we invite you to seek advice from our experienced Wills & Estates solicitors as to your options for contesting a Will.

To book a consultation with our wills & estates solicitor, call us today on 03 9366 5555.