Contesting a Will
Will disputes are increasingly common and there are laws within Australia that allows eligible people to potentially contest or challenge a Will.
Each Australian state and territory have their own set of rules in how to contest a will.
A person can contest or challenge a will on the basis of whether:
- a document constitutes a Will
- a person feels they received an insignificant portion or were wrongfully excluded from the Will
- a Will is considered valid
How to contest a Will in Victoria
Time limits can come into effect, so it is best to begin the process early.
Who is able to challenge or contest a Will?
You firstly need to know if you are eligible or not to contest a Will. This eligibility changes state to state.
The Administration and Probate Act 1958 (VIC) states to be eligible you must be (and in no particular order):
- A spouse or domestic partner (registered or unregistered) at the time of death
- A child of the deceased (also includes adopted, step or someone who believes the deceased was your parent and was treated as such) and are:
- Under the age of 18
- A full-time student under the age of 25 or
- Suffering from a disability
- An adult child
- A grandchild
- A person who was (and was likely to continue this in the near future) a member of the deceased’s household
- A registered caring partner
The five main reasons why people challenge or contest a Will are:
I was excluded from a Will
A person excluded from the Will are usually considered a ‘black sheep’ of the family, as they were purposely not mentioned. If this person can prove they were a close, family member, they can be considered an eligible person to contest the Will by making a Family Provision Application.
I believe I am entitled to more than what was given
At times, a person is given a provision of the Will. However, due to lifestyle choices or being able to demonstrate need (financially or health-wise), this person may believe the provision was inadequate and challenge the Will.
The person did not have the mental capacity to make the Will
This challenge typically occurs when the deceased person suffered from mental deterioration due to a mental disorder or illness, such as Alzheimer’s Disease. The courts will determine if the deceased person had the mental capacity to understand and approve the contents of the Will. This is referred to as testamentary capacity.
The person was pressured to change their Will
You can challenge a Will if you have evidence showing a person was under undue influence when making it. Undue influence means the person was coerced by a person or people making psychological or physical threats.
The Executor is not administering the Will appropriately
If you are dealing with an Executor who is not administering the Will properly or in a timely way, you may have the right to involve the courts to make the Executor accountable.
Disputes over the existence or meaning of a Will
Though a Will may not necessarily comply with required formalities, it may still be considered valid as an ‘informal Will’ under the Wills Act 1997.
The Wills Act 1997 allows an ‘informal’ Will to be valid and therefore enforceable in certain situations.
An ‘informal’ Will, held in the court of law may include the following types,
- A Will written on the wall.
- Documents comprised in computer files.
- An iPhone with a recording of the deceased’s wishes.
- A solicitor’s notes of instructions for a Will.
Each case declaring an ‘informal’ Will is dependent on the individual facts represented.
It is recommended to obtain advice prior to taking steps in relation to the deceased’s estate.
These types of cases often require an application for a ruling from the Supreme Court.
In addition, a Will may be drafted in such a way that its meaning is unclear.
A ruling from the Court is therefore required to determine what the deceased person intended to occur as outlined in the Will.
In some cases, an application to the Court for a ruling is required even though there is no dispute between interested parties.
How MJ Lawyers can help with Will disputes:
Mackinnon Jacobs Lawyers, based in Boronia, on the outskirts of Melbourne, can help you ascertain if you are eligible and our solicitors have successfully assisted many cases involving contesting or challenging a Will.
We also assist Executor’s or Administrators of deceased’s estates facing a potential claim.
Click here to contact us for a consultation.
Would you like to know more?Contact our litigation expert Richard Kent on 1300 424 452 to receive personalised advice about your case.