Challenging a Will
Experienced Wills and Estates Advice
We are experienced in providing Wills and Estates advice to clients looking to challenge a Will, having previously obtained successful outcomes in all types of estate litigation, including many Part IV claims for greater provision under a Will.
We aim to provide fast and effective handling of your legal matter. If you have any type of problem in relation to a deceased estate, feel free to contact us for free initial advice.
Can you challenge a Will?
There are two different types of Will challenges:
1. You can challenge the validity of a Will if you believe that one or more of the following applies:
- the deceased did not have the necessary capacity to make the Will, for example if the deceased suffered from dementia at the time the Will was signed;
- the deceased was unduly influenced in making the Will;
- the deceased did not know or approve of the contents of the Will;
- the deceased did not sign the Will;
- the deceased revoked the Will, or made a later valid Will;
- the Will was not executed properly, or was tampered with after execution.
2. Alternatively, and more commonly, a person may still contest or dispute a valid Will if they have not received adequate provision under the Will as part of a Testator's Family Maintenance Claim under the Administration and Probate Act 1958 (Vic).
After consultation, Armstrong Lawyers will be able to advise you on the most appropriate grounds on which to challenge a Will in your particular situation.
If you are the executor or beneficiary of an estate, Armstrong Lawyers will also be able to act for you in defending any Will challenges.
Who may make a Testator's Family Maintenance claim?
In Victoria, any person for whom the Deceased had a moral responsibility to make provision can make an application to court to contest the Will. Since 'responsibility' does not equate with 'dependence', this can include many types of family relations, and even long-term friends or carers.
The Deceased may have a responsibility to make provision for a person even in the following cases:
The person was estranged, or had a poor relationship with the Deceased;
The person is already receiving a portion of the Deceased's estate under the Will; or
The person was specifically excluded by the Deceased due to reasons expressed in the Will.
Even if the Deceased left no Will, you may also be able to make a claim for greater provision than your entitlement under intestacy laws.
All cases will be decided on their own particular facts and circumstances, and after considering your situation in its entirety, Armstrong Lawyers will be able to advise you as to whether you would be successful in making a claim.
When must a Testator's Family Maintenance claim be made?
A person must normally bring a claim to challenge their entitlement under a Will within 6 months of a grant of Probate or Administration. Outside this time, you must seek permission from the Court and have good grounds as to why you did not bring a claim within the required time. Armstrong Lawyers can provide advice as to whether you have appropriate grounds to bring a late application.
What are the grounds to make the claim?
The focus of a claim is whether there is 'inadequate provision' made for the person's proper maintenance and support. A person has a fundamental right to leave property through a Will to whomever they please. However, a moral duty also exists to make adequate provision for those closest to them. The Court is given discretion to decide which interest is paramount in any given case. The Court will consider a wide range of factors, including:
the nature and duration of your relationship with the Deceased;
any contributions you made to the Deceased's estate;
any promises made to you by the Deceased during his/her life;
the size of the estate;
your financial needs; and
the financial needs of any competing beneficiaries.
What is the procedure in making a claim?
When you retain Armstrong Lawyers to make a claim on your behalf, we will firstly take detailed instructions on all relevant factors.
If you decide to proceed, the usual procedure is to then file your claim in Court, and prepare affidavits, which are sworn statements setting out your situation, and explaining the reasons you should obtain further provision from the estate. The other party will also prepare affidavits explaining their side of the story.
Most matters then settle at mediation, without the need for you to actually attend Court. A mediation is a formal meeting between the parties and their lawyers, in which a settlement is negotiated.
What about the legal costs?
At Armstrong Lawyers we are able to offer our services at competitive rates. We will endeavour to settle your matter in order to obtain the best and most cost-effective outcome for you.
If you are a Plaintiff in a Will Dispute, you are able to claim most of your legal costs from the estate, unless your claim is without merit. Armstrong Lawyers will advise you at an early stage if we believe there is a chance you will not obtain your legal costs from the estate.
If you are an executor defending any litigation over the Will, all of your costs are usually paid or reimbursed from the estate, except in exceptional circumstances.
In some cases Armstrong Lawyers may be able to offer you our services on a No Success No Fee plan. Please enquire to see if you qualify for this arrangement.
View recent cases in which we have successfully acted in respect of Will Disputes.
Each client engagement is personally handled by our experienced lawyers who aim to provide fast and effective handling of your legal matter.
Free initial advice
For obligation free, no cost initial legal advice:
- call us on 134 134; or
- email us at email@example.com
Click here to find answers to frequently asked questions in respect of Challenging a Will.