Time Limitations On Contesting a Will
Eligible people have six months from probate to apply.
What Does Contesting a Will Mean?
Contesting a Will is the legal process for eligible family members or dependents to challenge a deceased person’s estate. In Victoria, claims usually fall into two categories: family provision claims (arguing inadequate provision) or validity challenges (questioning whether the Will is legally valid).
Contesting A Will In Victoria
Losing a loved one is never easy, and the grief can be further complicated when questions arise about whether the estate of the Will-maker has been distributed fairly. In Victoria, the law recognises that sometimes a Will may not adequately provide for those closest to the deceased. For eligible family members and dependants, contesting a will is the legal pathway to seek proper provision. Understanding your rights, the grounds for contesting a will, and the strict time limits is essential to protect your interests.
Who Can Make A Claim?
Not everyone can contest a Will. Only certain family members and dependants are eligible to lodge a family provision claim. This generally includes spouses, domestic partners, children and stepchildren, and in some cases other dependents who relied on the deceased financially. Former partners and certain other relatives may also qualify, depending on their relationship and dependence.
Even if someone has been left a small gift or portion of the estate, they may still lodge a claim if the amount provided is not sufficient to meet their reasonable needs. In practice, the eligibility rules are strict, and claimants must provide evidence to support their claim.
Grounds For Contesting A Will
In Victoria, a Will can be contested for two main reasons: a family provision claim or a validity challenge. A family provision claim arises when the Will does not adequately provide for an eligible person, making it the most common reason to contest a Will.
A validity challenge questions whether the Will is legally enforceable. Common grounds include lack of testamentary capacity, undue influence, fraud or forgery and failure to meet legal signing or witnessing requirements.
Family provision claims focus on fairness and adequacy, while validity challenges assess whether the Will reflects the deceased’s genuine intentions. Both require evidence and careful legal navigation.
What Is A Family Provision Claim?
A family provision claim is a legal process in which eligible family members or dependants ask the Supreme Court to review a deceased person’s estate if the Will does not provide adequately. It ensures that those with a close personal or financial relationship with the deceased are not left without support.
The court considers the claimant’s financial needs, their relationship with the deceased, contributions to the estate or the deceased’s wellbeing and the size and distribution of the estate. While the deceased’s intentions are considered, the court prioritises ensuring fair provision for eligible family members.
Challenging The Validity Of A Will
A Will can be contested if there are concerns about how it was made. Validity challenges focus on whether the Will genuinely reflects the deceased’s intentions and complies with legal requirements.
Common grounds include:
- Lack of testamentary capacity, for instance, if the deceased could not understand the Will
- Undue influence, pressure or coercion by another person
- Fraud or forgery, including Wills that have been tampered with or falsely created
- Failure to meet legal requirements, such as improper signing or witnessing
While family provision claims deal with the fairness of distribution, validity challenges ensure the Will itself is legally enforceable. Both require careful evidence and legal guidance to pursue successfully.
Probate Grant & Letters Of Administration
Understanding the probate grant is crucial when considering a family provision claim. Probate is the official recognition that a Will is valid and provides the executor with the authority to administer the estate. If there is no valid Will, the court may issue letters of administration, which appoint someone to manage the estate according to intestacy rules. The date of the probate grant or letters of administration is significant because it starts the clock for the time limit within which a family provision claim must be lodged.
Being aware of the probate process also helps families avoid unnecessary delays. Executors are legally required to notify potential claimants, but if family members are unaware of the death or probate, they should act quickly once they learn about the estate to protect their rights.
How Long Do You Have To Contest A Will In Victoria?
Time is critical when it comes to family provision claims. In Victoria, eligible claimants must file their claim within six months of the probate grant or the issuing of letters of administration. Probate is the formal legal process that confirms the validity of a Will and gives the executor authority to manage the estate. Letters of administration serve a similar purpose when there is no valid Will, authorising someone to administer the estate in accordance with the law.
Failing to lodge a claim within this timeframe can result in losing the right to contest the Will. In exceptional circumstances, the Supreme Court may allow a late claim, such as when the claimant was unaware of the deceased’s death or the probate grant. However, courts are generally cautious about granting extensions, making prompt action essential.
Making A Claim Out Of Time Limits
In some situations, it may be possible to lodge a claim after the statutory time limit. This is often referred to as an ‘out of time’ claim. Courts will consider the reasons for the delay, the claimant’s circumstances, and the impact on other beneficiaries. Examples of valid reasons include not being notified of the deceased’s death, delays in the probate process or genuine ignorance of the estate’s administration.
Even where a late claim is allowed, the process can be more complicated, and the chances of success may be reduced. Delays also often increase legal costs because of the additional complexity involved in persuading the court to accept a late claim. For this reason, anyone considering contesting a Will should seek legal advice as soon as possible.
The Role Of Evidence When Contesting A Claim
A successful family provision claim relies heavily on evidence. Claimants must show their financial position, contributions to the deceased, and reasons why the Will does not provide adequate support. Documents such as bank statements, tax records, medical reports, and witness statements can all strengthen a case.
Courts also take into account the deceased’s reasons for distributing the estate as they did, but moral duties and family responsibilities often outweigh mere testamentary freedom if a close family member is left without sufficient support.
Special Considerations When Contesting A Will
Some specific scenarios require extra attention. For example, if a family member suffers from dementia or the deceased lacked testamentary capacity, these factors can form the basis of a validity challenge. Claims involving undue influence require careful evidence to show that the deceased was pressured into making decisions that did not reflect their free will. Joint assets may also complicate claims, as not all jointly owned property automatically forms part of the estate available for family provision claims.
Even where a claimant has received something from the estate, it does not prevent a claim if that provision is insufficient. The court’s role is to ensure fairness, considering the needs of all eligible family members.
Legal Costs & Considerations
Contesting a Will can be a complex and sometimes costly process. Legal costs may include court fees, solicitor fees, and the cost of gathering expert evidence. These costs can escalate, particularly if the claim involves challenging the validity of a Will or if multiple parties contest the estate.
Early legal advice is critical to assessing the merits of a claim, exploring negotiation or mediation options, and avoiding unnecessary expenses. If a claim is successful, some claimants may be eligible for cost orders to recover legal expenses, but this is not guaranteed.
Timely Action Matters
When it comes to contesting a Will, time is critical. Strict limits apply across Australia, starting from the probate grant or the issuing of letters of administration. Acting quickly not only protects your rights but also preserves evidence, strengthens your position in court, and avoids the risk of your claim being dismissed as out of time. Whether your concern is inadequate provision, undue influence, or if you have questions about the Will’s validity, prompt action and sound legal advice give you the best chance of success.
Need Help Contesting A Will?
If you believe you have grounds to contest a Will, get in touch with the team at Pearsons Lawyers for a free consultation on 1300 699 688 or via our contact form. Our skilled Wills and Estates Lawyers will help you understand your options, safeguard your rights and ensure your claim is properly considered by the court.
