CONTESTING A WILL – WHAT YOU NEED TO KNOW

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There are generally two grounds to contest a Will:

  1. The Will does not properly reflect the wishes of the Willmaker, due to the Willmaker having lacked capacity or the Willmaker having been under undue influence at the time of signing the Will.
  2. The Will does not make adequate provision for a beneficiary.

The latter is the most common, as the law recognises that people making a Will have a duty to provide for their close family members.

In circumstances where a Willmaker fails to sufficiently provide for a close family member, then that family member may choose to make a claim under Part IV of the Administration and Probate Act 1958 (Vic) (Act) against the estate of the deceased – this is known as a Part IV Claim.

If you have been left out of somebody’s Will, or received less in a Will than you believe you are entitled to, then you may eligible to make such a claim against the estate of the deceased.

Eligible persons – who can make a Part IV Claim?

To make a Part IV Claim, you must establish that you are an eligible person, as defined under section 90 of the Act.

Eligible persons include, but are not limited to:

  1. The spouse or domestic partner of the deceased.
  2. A former spouse or domestic partner of the deceased.
  3. Children of the deceased, including adopted and step-children.
  4. Grandchildren of the deceased.
  5. Someone who was a member of the household of the deceased.

A Part IV Claim will generally arise when a child or spouse has not been properly provided for in the deceased’s Will, or when an eligible person suffers from a disability that requires further consideration.

What does the law say?

In assessing the merits of a Part IV Claim, the Court will consider a number of matters, including:

  1. If the deceased had a Will, what did it say?
  2. The size and nature of the estate.
  3. What responsibilities did the deceased have to their beneficiaries?
  4. What contributions (financial and non-financial) did a person make to the deceased during their life time.
  5. What is the financial situation of a beneficiary?
  6. The nature of a beneficiaries’ relationship with the deceased.
  7. Whether any of the beneficiaries had a special need and/or disability.

Further to the above, the Court has the discretion to consider any other matter that the Court considers appropriate.

What can the Court do? Is there a time limit?

An application to the Court for a family provision order must be made within six months after the date of the grant of probate of the will, or of letters of administration. However, in some cases, applications can be made after this six-month period, if the Court deems it appropriate to do so.

If found that an eligible person has a proper basis to make an application Part IV of the Act, the Court can make an order that provision be made from the deceased’s estate, which may consist of a lump sum and/or periodical payment.

What’s next?

If you believe you are an eligible person and wish to make a Part IV Application against the estate of a deceased and/or contest a Will of a deceased, you should not hesitate to contact Kennedy Guy Lawyers for an appointment with our estates and litigation team.

COVID-19 note: We can attend to most appointments by telephone, and for signing, we take all necessary precautions to protect our client’s health.

Contact Kennedy Guy Lawyers on 9311 8511 or via kennedyguy.com.au

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