When someone passes away and leaves behind a will, it represents their final wishes on how they would like their estate to be distributed.
However, there are situations where the fairness or validity of the will can be called into question, leading to the need for contesting the will.
In Victoria, there are a number of grounds on which a will can be contested. These include:
In Victoria, not everyone is eligible to contest a will. The law sets out specific categories of “eligible persons” who can make a claim against a deceased person’s estate, according to the Administration and Probate Act 1958 (Vic). This typically includes:
However, it’s important to note that simply being an eligible person to contest a will does not guarantee that a claim will be successful.
Contesting a will is typically a complex process and involves the following steps:
While there is no way to guarantee that someone won’t contest a will, there are several steps that can be taken to minimise the chances of their success.
One of the most important things that can be done is for the will maker to ensure that the will is clear, comprehensive, and properly executed. A well-drafted will that provides for all potential claimants and explains the reasons behind the distribution can reduce the likelihood of a successful challenge.
Sometimes, will disputes arise from misunderstandings or perceived slights. As the will maker, discussing the will and the reasons for its provisions with potential beneficiaries can sometimes prevent disputes.
If excluding someone from the will, the will maker should record the reasons for excluding an eligible person from their will either in the will itself, or by way of a statutory declaration kept with the will. Such reasons will be taken into consideration by the Court in the event the will is challenged.
It can also help to have documentation confirming the testator’s mental capacity at the time the will was signed, such as a letter from the will maker’s treating doctor, as well as the file notes from the solicitor who prepared and witnessed the will. This will ensure that if their mental capacity is called into question, this documentation may be admitted into evidence to prove capacity.
However, if the will maker is already deceased, and the above steps have not been taken, there are a few things you can do.
If someone is threatening to contest the will, it may be worthwhile to engage in informal discussions and or to try to resolve the issues by negotiation without the need for court intervention.
It is also a good idea to engage a lawyer experienced in estate disputes to ensure the will is robust and to provide advice if someone threatens to contest the will.
You have six months from the date of the grant of probate or letters of administration to contest a will in Victoria.
This is specifically for claims made under Part IV of the Administration and Probate Act 1958 (Vic), also known as a Family Provision Claim, where an eligible person claims that they have not been adequately provided for in the will.
There can be some exceptions to the six month time limit, as the court has discretion to extend the six-month limit in limited circumstances.
If you’re contesting the will on different grounds, such as fraud, lack of testamentary capacity, undue influence, or improper execution, there isn’t a strict time limit. However, it’s generally best to take action as soon as possible.
Yes, you can contest a will after probate. Typically, wills are contested after the grant of probate has been issued so long as any claim is made within the prescribed time limit.
It’s important to keep in mind that the chances of successfully contesting a will are going to greatly depend on the specific circumstances of each particular will.
A person who is contesting the will must first be able to meet the eligible person criteria, (mentioned earlier) or have substantial evidence that the will was invalid due to incapacity or otherwise.
The vast majority of will disputes are settled by negotiation or mediation before trial.
The cost of contesting a will in Victoria will vary greatly depending on a number of factors. However, in general, the cost of contesting a will in Victoria is likely to fall somewhere in the range of $25,000 to $100,000.
Some factors that will affect the cost of contesting a will include:
Also, keep in mind that if you’re unsuccessful in your claim, you may be ordered to pay the other party’s legal costs, which could significantly increase your total cost.
Generally, the person who initiates the action to contest a will (the claimant) is responsible for their own legal costs, whether or not they are successful in their claim.
However, there are some exceptions to this. For example, if the court finds that the will was invalid, the estate may be ordered to pay the legal fees of the person who contested the will.
On the other hand, if the court finds that the claim was frivolous or vexatious, the person who made the claim may be ordered to pay the legal fees of the other parties involved in the case.
The final determination of who pays the legal costs is typically made by the court.
The exception to this is if the claim was settled out of court, the parties can come to an agreement as to who will cover the costs, or to share the legal fees.
Whether you are looking to contest a will or you need to defend a will, we can help.
Our experienced will lawyers are here to ensure that you get the best possible outcome, no matter which side of the will contest you are on.
From giving you the initial legal advice as to whether you have grounds to contest a will and the chances of success, to helping you through mediation and representing you in court, we are by your side every step of the way.
Being experienced in Victorian estate law, our lawyers have a deep understanding of the laws and how they are likely to be interpreted, giving you a much better chance of success with your will dispute.
Speak to us today by clicking the button below and get your will dispute sorted now!
To get in contact with us about your estate matter, either click the button below to call us or fill out the form and we will get back to you as soon as possible!