What is a Will?
A Will documents your personal wishes and provides clear instructions to your executor about how to distribute your personal assets of your estate to your beneficiaries when you pass away.
Contesting A Will
One question which I am commonly asked is can I contest a Will. Generally speaking, there is two common situations where a person can dispute a Will; when you are disputing the validity of a Will or when making a claim for provision from a deceased estate (when you have either been left out of a Will or you have received less provision than expected).
IS THE WILL VALID?
You can challenge the validity of a Will in certain circumstances, such as:
- if the Will was forged;
- if the Will maker lacked the mental capacity to make a Will;
- if the Will maker was unduly influenced to make a Will being unduly influenced by one or more of the beneficiaries at the time the Will was made;
- if there was fraud involved in preparing the Will.
A common situation in Will contests, is when the Testator is systematically isolated from family and friends by the primary beneficiary of a Testator’s Will, leading to it being invalidated based on undue influence.
BRINGING A CLAIM FOR PROVISION FROM A DECEASED ESTATE
In Victoria, to contest and make a claim for provision from an estate you must be an eligible person. The definition of an eligible person includes a spouse, domestic partner, a former spouse or domestic partner, children, step-children or grandchildren of the deceased. This definition also includes other categories of claimants who were dependent upon the deceased person.
The eligible person must also satisfy legislative requirements that the deceased was domiciled in Victoria as at the date of death and owned real and personal property. When a claim is made the court will consider the deceased’s Will, if any, evidence of the deceased’s reasons for making the dispositions in the Will and any other evidence relating to providing for the eligible person.
When do I need to file a claim and how do I obtain a copy of the Will?
The clock starts ticking after you receive notice of probate, meaning that the deceased has died and his or her assets are being distributed per the Will. There is 6 months from the date of the grant of representation of probate to make a claim however, in some circumstances, we may be able to obtain an extension subject to approval of the court and a deceased estate remaining undistributed
A person in possession of a Will, including a revoked Will of a deceased person, must allow inspection of the Will to any of the following:
- any parent, guardian or children of the deceased person;
- any spouse of the deceased at the date of the testator’s death;
- any de facto of the deceased;
- a person named or referred to in the Will, whether as beneficiary or not;
- a person named or referred to in any earlier Will as a beneficiary;
- any person who would be entitled to a share of the estate if the deceased person had died intestate;
- any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the testator if the testator had died intestate;
- any other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.
Where to now?
If you’re considering contesting a Will because you believe a family member or friends’ Will does not properly reflect their wishes, then we encourage you to book an appointment with our office for an initial consultation.
If you would like more information please contact us.
You can also find further information in our: Children and Family Law – Frequently Asked Questions, Children and Family Law, Family Law Property – Frequently Asked Questions, Family Law Property, Child Support, Divorce, Purchasing Property, Selling Property, Subdivisions, Business Sales and Acquisition, Building And Planning, Small Business, Debt Recovery, Leases and Agreements, Power of Attorney, Wills and Estates Planning, Probate and Guardianship sections.
If you require advice, assistance or guidance, in any legal matter, please call today on (03) 5975 7611 or Enquire Online.