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When someone passes away and leaves behind a will, it represents their final wishes on how they would like their estate to be distributed.Â
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.
Grounds For Disputing a Will In Victoria
In Victoria, there are a number of grounds on which a will can be contested. These include:
- Lack of testamentary capacity, where it is believed that the person who made the will lacked the mental capacity to properly do so at the time it was created (such as due to a health condition).
- If the will was made under undue influence, duress or fraud, such as if the person making the will was under pressure or manipulation, or was threatened to write the will.
- If the will wasn’t properly executed, meaning all the legal conditions for a will to be valid were not met.
- If it can be proven that the maker of the will did not understand the contents of the will when it was signed.
- Insufficient provision under Part IV of the Administration and Probate Act 1958 (Vic) for proper maintenance and support of certain people such as a spouse or children.
- If a codicil (a document used to change or update a will) was not correctly made.
Who Can Contest a Will In Victoria?
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:
- Spouse or domestic partner of the deceased at the time of the deceased’s death.
- A former spouse or domestic partner of the deceased, if a property settlement was never reached following separation.
- Children or step-children of the deceased.
- Adopted children or step-children of the deceased, who at the time of the deceased’s death, were under the age of 18 or a full-time student aged between 18 and 25, or under a disability.
- Grandchildren if they were wholly or partly dependent on the deceased for their proper maintenance and support at the time of the deceased’s death.
- A person who believed the deceased was their parent and treated as a natural child by the deceased for a substantial period during the deceased’s life.
- A spouse or domestic partner of a child of the deceased, if that child dies within one year of the deceased’s death.Â
- Registered caring partner of the deceased if they were registered at the time of the deceased’s death and wholly or partly dependent on the deceased for their proper maintenance and support at the time of the deceased’s death.Â
- A person who was a member of the deceased’s household can make a claim if they can demonstrate that they were dependent on the deceased for their proper maintenance and support.
- In some cases, others who were dependent on the deceased or had a close personal relationship with the deceased at the time of the deceased’s death can make a claim.
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.
How to Dispute a Will In Victoria
Contesting a will is typically a complex process and involves the following steps:
- You must first ensure that you are actually an eligible person to contest the will, by being in one of the “eligible person” categories mentioned previously, as defined in the Administration and Probate Act 1958 (Vic).
- Next you must identify the grounds on which you are contesting the will, such as lack of testamentary capacity, undue influence, fraud, improper execution, lack of knowledge and approval, insufficient provision for dependents or any combination of these.
- At this point it is highly recommended to seek legal advice from a will lawyer to identify the best course of action for your situation, so that you stand the best chance of success.
- Before you can contest a will, probate or administration of the will needs to have been granted. If probate has not been granted and you want to stop this from happening while you prepare your case, you can lodge a caveat with the Supreme Court of Victoria.
- The process formally begins when you file a caveat, followed by a summons with the Supreme Court of Victoria, setting out your claim and the reasons for it.
- If possible, the claim may be resolved by negotiation and if not, it must proceed to mediation. The Courts require parties to attempt to resolve their differences through mediation before going to trial. This is often a quicker and less expensive way to resolve disputes.
- If mediation is unsuccessful, the matter will proceed to a court hearing, where the court will consider evidence from both sides before making a decision to either uphold the will, invalidate part of the will or the whole will, or adjust the distribution of the estate.
- If you’re not satisfied with the court’s decision, you may have the right to appeal, but there are strict time limits and criteria to meet.
How to Stop Someone Contesting a Will In Victoria
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.Â
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.
How Long Do You Have to Challenge a Will In Victoria?
You have six months from the date of the grant of probate or letters of administration to contest a will in Victoria.Â
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.
Can You Contest a Will After Probate?
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.
What Is the Success Rate of Challenging a Will In Victoria?
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.Â
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:
- The complexity of the case, as more complex cases will typically require more time and resources to resolve, which increases the cost.
- The fees charged by your lawyer and any barrister that may be engaged will be a significant part of the cost. Legal fees can vary based on the lawyer’s experience, the barrister’s experience and the complexity of the work.
- If the case goes to court, there will be court fees to pay. The exact amount can depend on the court and the specific proceedings.
- Mediation costs if the dispute was resolved through mediation before going to court. The cost of mediation will vary depending on the mediator’s fees and the length of the mediation.
- If expert evidence is required, such as a medical expert to give evidence on the testator’s mental capacity, this will add to the expenses.
- Disbursements, which are costs your lawyer incurs on your behalf, such as for obtaining copies of documents, courier fees, and so on.
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.
Who Pays to Contest a Will In Victoria?
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.
Are You Dealing With a Will Contest or Dispute?
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!
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