Contesting A Will in Victoria

Introduction

The words contesting a will refer to a family provision claim, not challenging a Will or a Will dispute. The law relating to contesting a Will in each State of Australia is different.

The following is a summary of fundamental information that any interested person will find helpful if contemplating a family provision claim in Victoria:


1. Claiming in Victoria.

A claim can only be made in Victoria if either :

  • (a) there is real estate property owned by the deceased situated in Victoria and/or
  • (b) the deceased was domiciled (living permanently) in Victoria at the date of his or her death and owned personal property anywhere.

2. Obtaining a copy of the Will.

Pursuant to Section 50 of the Wills Act 1997 (Vic) the following persons are entitled to inspect a Will of the deceased:

  • a) any person named or referred to in the will;
  • b) any person named or referred to in an earlier will as a beneficiary;
  • c) spouse at date of death;
  • d) domestic partner of deceased;
  • e) parent, guardian or children of deceased;
  • f) any person who would be entitled to a share if the deceased died intestate;
  • g) any parent if a minor refer to in will or who would be entitled to a share if deceased died intestate;
  • h) any creditor or person who has a claim against the estate and produced evidence of that claim.

3. When there is no will in VIC.

The legal term when the deceased died without a Will is that the decease died “Intestate”.

In Victoria, the list of beneficiaries when there is no Will are as follows:

  • 1. If survived by one spouse and no children then the spouse is entitled to the entire estate.
  • 2. If survived by one spouse and children:-
    • Then the spouse is entitled to:
      • – The personal chattels of the deceased;
      • – The first $100,000.00 of the estate (excluding chattels);
      • – 1/3 of the remaining estate:
      • – No right to matrimonial property (unless jointly owned) but they have the right to purchase the property.
    • The children are entitled to:
      • – Equal shares of the remaining estate after spouse received their entitlements;
      • – If the estate (excluding personal chattels) is less than $100,000.00 then they will receive
  • 3. If survived by multiple spouses it then depends on the period that the domestic partner has lived as a domestic partner of intestate continuously before intestate’s death:
    • – If it is less than 4 years then the spouse’s entitlement to the deceased’s estate is 2/3 and the domestic partner’s entitlement to the deceased’s estate is 1/3;
    • – If it is 4 years or more but less than 5 years then the spouse’s entitlement to the deceased’s estate is 1/2 and the domestic partner’s entitlement to the deceased’s estate is 1/2;
    • – If it is 5 years or more but less than 6 years then the spouse’s entitlement to the deceased’s estate is 1/3 and the domestic partner’s entitlement is 2/3;
    • – If it is 6 years or more then the spouse’s entitlement to the deceased’s estate is NIL and the domestic partner’s entitlement is to all of the estate.
    • *NOTE: the domestic partner must have lived with the intestate continuously for at least 2 years before the intestate’s death, unless the domestic partner is the parent of the child of the intestate who was under 18 years at the time of the intestate’s death (s 51(A) of the Administration and Probate Act 1958).
  • 4. If survived by no spouse and no children then the beneficiaries of the estate will be determined in the following order:
    • a) Parents;
    • b) Siblings;
    • c) Grandparents;
    • d) Nephews and nieces;
    • e) Aunts and uncles;
    • f) Cousins and grandchildren; and
    • g) State Government.
    • *NOTE: once determined all parties within the appropriate category will receive an equal portion of the estate.

4. The time limit to contest a Will in Victoria.

Pursuant to the Administration and Probate Act 1958 (Vic) s 99 the time limit in which to make a claim is within 6 months of the date of the grant of Probate or Administration or 3 months from the time you give notice to the estate (ss99A).

5. Eligibility to contest a will in Victoria.

To receive an order for provision or further provision you must be an eligible person/applicant.

Pursuant to Section 91 of the Administration and Probate Act 1958 (Vic) the following are “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person;

  • a) Any person may bring a family provision claim against any estate if the deceased had a responsibility to make provision for that person;
  • b) *Under Administration and Probate Act 1958, s91 a legal spouse, de-facto, former spouse, child, stepchild, grandchild, parent and sibling (NOT EXPRESSLY LISTED but may be eligible if deceased had a responsibility to provide).

6. The evidence the Court takes into consideration in Victoria.

Pursuant to Section 91(4) of the Administration and Probate Act 1958 (Vic) the Court takes the following evidence into consideration:

  • a) any family or other relationship between the deceased and the applicant (including the nature and length of the relationship);
  • b) any obligations/responsibilities the deceased had to the applicant, any other applicant or beneficiaries;
  • c) the size and nature of the estate and liabilities;
  • d) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary the estate at the time of the hearing and for the foreseeable future;
  • e) any physical, mental or intellectual disability of any applicant or beneficiary of the estate;
  • f) the age of the applicant;
  • g) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or family of the deceased;
  • h) any benefits previously given by the deceased person to any application or to any beneficiary;
  • i) whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
  • j) the liability of any other to maintain the applicant;
  • k) the character and conduct of the applicant or any other person;
  • l) any other matter the court would consider relevant.

7. When you don’t live in VIC.

Where you personally live has no bearing on your claim. The important factor is that the deceased lived in Victoria and the deceased owned assets in Victoria. A claimant can very easily make a claim from another State without leaving his or her front door. This is a common and frequent situation. What you don’t want is a lawyer acting for you without a thorough knowledge of the law in the State where you are claiming.

8. When you believe the Will is not valid in VIC.

You may be able to challenge the validity of a Will if you believe the Will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe there was undue influence placed upon the Will maker in the will making process or if there was fraud involved. To research the Intestacy rules for Victoria please refer to question 3.

9. When where and how do you start in VIC.

When. Because estate funds can sometimes be sold, transferred or spent, if you are going to make a claim you should do so without delay. Otherwise you may have no assets or funds to claim upon.

Where. You may call any of our offices for assistance. We are also available after normal business hours.

How. We will talk to you about your case and depending upon your wishes immediately attempt to settle your claim before any court action is considered. If the persons named in the Will refuse to settle we will commence court proceeding for you.

For a free case assessment call 1800 90 20 90

10. The legal fees in VIC.

Legal costs in family provision cases are at the discretion of the judge however if an order for provision is made for a claimant the claimant’s costs will be paid out of the estate.

If however the claimant’s case is rejected and no order is made in his or her favour he or she may be ordered to pay the costs of the executor defending the proceedings. For that reason alone we recommended you should only seek advice from a specialist lawyer in this field of law.

There is a lot more detail to discuss with you about costs and the variety of costs agreements available to you in these cases including our guaranteed “NO Win No Fees” policy.

For a free case assessment call 1800 90 20 90



11. Who is eligible to make an application for family provision to the Supreme Court of Victoria out of an estate of a deceased person?

Anyone can make an application to the court however to be successful and have a maintenance order made in your favour you must satisfy the court on many subjects but primarily that you were dependant upon the deceased.

12. What is the time limit for making an application for family provision in Victoria?

Within six months after the date of the grant of probate of the will or of letters of administration (as the case may be).

13. Can this time limit be extended? What limitations apply?

Yes, after hearing from the parties affected the court may extend the time limit as it think necessary. The application for extension cannot be made after the final distribution of the estate. As such no distribution of any part of the estate made prior to the application can be disturbed by reason of the application or of any order made thereon.

14. What general factors is the court governed by in determining an order for family provision?

  • (a) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
  • (b) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
  • (c) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
  • (d) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
  • (e) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
  • (f) the age of the applicant;
  • (g) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
  • (h) any benefits previously given by the deceased person to any applicant or to any beneficiary;
  • (m) whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
  • (n) the liability of any other person to maintain the applicant;
  • (o) the character and conduct of the applicant or any other person;
  • (p) any other matter the Court considers relevant.

15. What are the requirements of notice on an application for family provision?

Notice of an application under section 91 must be served on the personalrepresentative of the deceased and on such other persons as the Court orders.

16. Does the court have the power to impose conditions, restrictions and limitations on a family provision order?

Yes. The Court may in making any order under this Part impose such conditions restrictions and limitations to prevent restrict or defeat any alienation or charge of or upon the benefit of any provision made under such order or otherwise as it thinks fit.

17. Can the court order that a lump sum or periodical payment be paid?

Yes. The Court may in making any order under this Part order that the provision may consist of a lump sum or a periodical or other payment.

18. How is an order for family provision evidenced?

A certified copy of such order is to be attached to the probate of the will or letters of administration.

19. What happens with a family provision order until such time that a certified copy can be obtained?

The Court shall retain in its custody such probate or letters of administration until such copy is attached.

20. How do family provision orders operate and take effect?

  • (a) where the deceased dies leaving a will disposing of the whole or any part of his estate – as if the provision made by the order had been made by the deceased by executing a codicil to his will immediately before his death
  • (b) where the deceased dies without leaving a will – as a modification of the provisions of Division 6 of Part I of this Act in respect of so much of the estate of the deceased as is affected by the order.

21. How much does an order under section 91 cost?

This is up to the court. The Court may make any order as to the costs of an application that is, in the Court’s opinion, just.

22. What protection is afforded to the personal representative of the estate?

No action lies against the personal representative if he has distributed any part of the estate, and has done so properly, therefore providing for the maintenance support or education of the partner or any child of the deceased totally or partially dependent on the deceased immediately before his or her death.

23. Does it matter whether the personal representative at the time of the distribution had notice of an application or intended application under this Part?

No. No action shall lie against the personal representative by reason of his having distributed any part of the estate, and no application or order under this Part shall disturb the distribution, if it was properly made by the personal representative for the purpose of providing for the maintenance support or education of the partner or any child of the deceased totally or partially dependent on the deceased immediately before the death of the deceased, whether or not the personal representative had notice at the time of the distribution of any application or intended application under this Part in respect of the estate.

24. A proper distribution has been made by the personal representative after the expiration of six months after the grant of probate of the will or of letters of administration (as the case may be) and without notice of any application/intended application under this Part in respect of the estate. Does an action lie against the personal representative?

No action shall lie against the personal representative by reason of his having distributed any part of the estate if the distribution was properly made by the personal representative after the expiration of six months after the grant of probate of the will or of letters of administration (as the case may be) and without notice of any application or intended application under this Part in respect of the estate.

25. Can you give me an example of a contested will case where the grandchildren were successful?

In Petrucci v Field [2004] VSC 425 the applicants were the daughter in law of the deceased and the widow of the deceased’s son who predeceased the testator. The second, third and fourth plaintiffs were all grandchildren of the deceased. At the time of the application the grandchildren were 35 years of age, 30 years of age and 28 years of age. Mandie J, when considering whether the deceased had a responsibility to make provision for the plaintiff grandchildren made the following observations: they were adults, they had never been dependent on the deceased, they were all in employment and two of them had spouses who were themselves in employment. Their relationship was at best unremarkable. His Honour said at 65:

In the present case, the plaintiff grandchildren had a normal relationship with the deceased until the death of their father, but not a special dependent relationship. They do have, I think, a clear need for some provision for their long term security. They will probably not be able to acquire, to any substantial extent, the financial ability to deal with the exigencies and contingencies of life for themselves. In addition, as I have said, they have lost any possibility of immediate or continuing support from their father. In that context, according to prevailing community standards and as a matter of moral responsibility to them, their grandfather ought to have made some provisions for them.

26. What general power does the court have in relation to maintenance orders?

The Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility.

27. When a person has applied for an order what main factor does the court take into account when making an order?

Whether or not the deceased person’s will and/or the operation of the provisions of Part 1 Division 6 of this Act makes adequate provision for the proper maintenance and support of the person.

28. What powers does the court have when hearing an application for provision?

The Court shall inquire fully into the estate of the deceased, and for that purpose may:

  • (a) summon and examine such witnesses as may be necessary; and
  • (b) require the executor or administrator to furnish full particulars of the estate of the deceased; and
  • (c) accept any evidence of the deceased person’s reasons for making the dispositions in his or her will (if any) and for not making proper provision for the applicant, whether or not the evidence is in writing.

29. What must an order contain?

  • a) the amount and nature of the provision;
  • b) the manner in which the provision shall be raised or paid out of some and what part or parts of the estate of the deceased; and
  • c) any conditions restrictions or limitations imposed by the Court.

30. Who (what beneficiary) burdens the provisions ordered by the court?

Unless the Court otherwise the persons beneficially entitled to the estate of the deceased in proportion to the values of their respective estates and interests in such estate: Provided that the estates and interests of persons successively entitled to any property which is settled by such will shall not for the purposes of this subsection be separately valued but the proportion of the provision made under this Part to be borne by such property shall be raised out of or charged against the corpus of such property.

31. Can an order be rescinded or altered by the court?

Yes. On application to the court by the executor or administrator of the testator’s estate or of any person beneficially entitled to or interested in any part of the estate of the testator.

32. Does notice have to be served?

Yes. Notice of the application must be served on all persons taking any benefit under the order sought to be rescinded or altered.

33. Under what circumstances can costs (for an application for family provision be ordered against the applicant?

If the Court is satisfied that an application has been made frivolously, vexatious or with no reasonable prospect of success.

34. Does notice waive the person’s right to bring an action against the personal representative?

If a person (of full legal capacity) has notified the personal representative in writing that he/she:

  • (a) consents to the distribution; or
  • (b) does not intend to make any application that would affect the proposed distribution

then no action can be sought against the personal representative for a proper distribution after such notice.

35. What are the requirements of notice to the personal representative?

Notice to a personal representative of intention to make any application under this Part shall be in writing signed by the applicant or his legal practitioner and shall lapse and be incapable of being renewed.

36. I’m considering contesting a will. Are de facto and same sex couples treated equally under the laws governing succession in Victoria?

In Greely & Ors v Greely [2011] VSC 416 Judd J said at 26:

The amended legislation, while expanding the class of eligible applicants, confers only a limited jurisdiction to interfere with freedom of testation. It does not license the court to effect a redistribution of an estate because it would satisfy notions of familial generosity, or because the claimant has few resources and the defendant taking benefits under the will is relatively well off.

Rather, it remains necessary to establish a need for provision and maintenance in the applicant in order to enliven the jurisdiction. If the need is not established, the court has no jurisdiction to make an order, no matter how large the testator’s estate. Nevertheless, the size of the estate is not irrelevant to determining need, which is not an absolute concept.

Further, it is necessary to establish a breach of duty or moral obligation on the part of the testator, which constitutes a departure from the standards which a wise and just testator would have applied. There must be an abuse of the freedom of testation.

Prevailing community standards, which may alter according to changing social and economic conditions, are the criteria against which the duty and moral obligation, and any departure from them, must be measured.

According to prevailing community standards and applicable law, as consistently recognised by this Court, the obligation to maintain and provide for infants ordinarily rests upon their parents, rather than on grandparents.

37. In will contest cases what has been the effect of legislative amendments on the court’s jurisdiction in Victoria?

In Greely & Ors v Greely [2011] VSC 416 Judd J said at 26:

The amended legislation, while expanding the class of eligible applicants, confers only a limited jurisdiction to interfere with freedom of testation. It does not license the court to effect a redistribution of an estate because it would satisfy notions of familial generosity, or because the claimant has few resources and the defendant taking benefits under the will is relatively well off.

Rather, it remains necessary to establish a need for provision and maintenance in the applicant in order to enliven the jurisdiction. If the need is not established, the court has no jurisdiction to make an order, no matter how large the testator’s estate. Nevertheless, the size of the estate is not irrelevant to determining need, which is not an absolute concept.

Further, it is necessary to establish a breach of duty or moral obligation on the part of the testator, which constitutes a departure from the standards which a wise and just testator would have applied. There must be an abuse of the freedom of testation.

Prevailing community standards, which may alter according to changing social and economic conditions, are the criteria against which the duty and moral obligation, and any departure from them, must be measured.

According to prevailing community standards and applicable law, as consistently recognised by this Court, the obligation to maintain and provide for infants ordinarily rests upon their parents, rather than on grandparents.

38. I am a grandchild contesting a will in Victoria. What factors will the court take into account in my claim?

Dodds Streeton J in MacEwan Shaw v Shaw (2003) 11 VR 95 outlined a number of principles in relation to claims by grandchildren:

  • (a) Usually, the moral obligation to provide for a grandchild rests on the child’s parents, not the grandparents.
  • (b) The mere fact of a family relationship between grand parent and grandchild does not of itself establish responsibility to provide for the grandchild.
  • (c) Generosity by grandparent to a grandchild, including contributions to the education of the child, does not convert the grandparental relationship into one of obligation to the recipient.
  • (d) The fact that the grandchild resided with one or more of his or her grandparents is a most significant factor. If the parent provides shelter, accommodation, food and clothing then the Court is most unlikely to find that a deceased grandparent assumed responsibility to provide in his or her will for the grandchild.
  • (e) If the deceased grandparent is survived by his or her spouse, the spouse’s claim to the estate of his or her late spouse would normally be paramount over any claim the grandchild might have.
  • (f) Where a grandchild has lost his or her parents at an early age, been taken in by the grandparents in circumstances where the grandparents assume the role of surrogate parents, and the parents die when the child was still dependent upon them, these factors would prima facie give rise to a claim by a grandchild to be adequately provided for out of the estate of the deceased grandparent.
  • (g) The fact that the parents, or either of them, of a grandchild has predeceased the grandparent may be a relevant factor in support of the claim made by a grandchild.

39. When can the court make an order in favor of a person?

  • (a) when that person has applied for the order; or
  • (b) another person has applied for the order on behalf of that person.

40. Will contest. What is a summary judgement?

A discretionary verdict given in favour of the plaintiff, where there is no evidence of the fact upon which the claim is based and the defendant has no real defence to the plaintiff’s claim.

41. Can you give me a contested will case where the plaintiff was not in a position of financial need?

In Story v Semmens and Anor [2011] VSC 305 Zammit AsJ referred to the case of Unger v Sanchez [2009] VSC 541 and said at paragraphs 74-76:

74. In Unger’s case the plaintiff was not a member of the testator’s family. The plaintiff cared for the testator and the testator’s husband in later years of their lives. The Court considered that the relationship was akin to parent and child. In Unger’s case the plaintiff was 66 years of age. There were competing claims and the estate was valued for probate purposes at $1,718,985. At paragraph 96 His Honour Kaye J noted:

Overall the plaintiff may be considered as being reasonably comfortable from a financial point of view. She has financial security, in that she and her husband own their home, she has a half interest in two residential investment properties and she has a healthy superannuation entitlement. On the other hand, she does not have significant liquid assets and she only has a small income.

75. His Honour went on to note that the plaintiff was not in a position of financial need.

76. His Honour found that the plaintiff’s financial position did not negate the obligation of the testator to make adequate provision for her. In doing so his Honour took into account the plaintiff’s relationship with the testator and noted “her exceptionally strong desserts”.

The plaintiff was awarded $200,000.

42. As a defendant contesting a will in Victoria can I request that a summary judgement be made?

In Harris v Bennett (No. 1) (2002) 8 VR 411 McDonald J said at 52:

I see no reason why the Court cannot and should not entertain an application for summary judgment pursuant to Rule 23.01(1)(a) [of the Supreme Court (General Civil Procedure) Rules 2005]. There is nothing in the wording of s.91 of the Administration & Probate Act which leads me to conclude that there was thereby expressed an intention that the provisions of Rule 23.01(1) would be not applicable to a case brought pursuant to that section.

43. I am an applicant contesting a will in Victoria. Do I have a right to discovery?

In Reed v Reed [2001] VSC 54 Beach J said at 21:

It is a well-established principle that in a proceeding commenced by originating motion … discovery will not be ordered unless the party seeking the order has established the existence of special circumstances justifying the making of the order.

44. Can you give me a contested will case involving a same sex relationship in Victoria?

In Bentley v Brennan; Re Bull (dec’d) [2006] VSC 113 the applicant for provision was an adult male who had maintained a same sex relationship for twenty years in adulthood with the deceased who had also abused the applicant for eight years as a minor. The court concluded that the applicant was not entitled to provision. At 24 and 35 it was said:

…reference to accepted community standards requires a consideration of what those standards of the general community are…They may change from time to time. For example, I would have little difficulty in concluding today that a relationship between the testator and an unmarried heterosexual partner or between a testator and a homosexual partner would today be seen by the general community as one which might give rise to a moral obligation just as a relationship with a spouse. The challenge presented by a case such as the present arises at a different level. I am required to…form an assessment of the true relationship which existed between the deceased and the claimant in order to determine the existence or not of the moral duty…Difficulty arises where this is a relationship between members of a community with which the judge is not familiar. This may be a particular ethnic or social community; it may be a community whose bond is that of sexual orientation…the judge must do the best he or she can, bringing to bear wisdom, an openness of mind drawing upon long experience of life and human conduct and attitudes, and above all, resisting the temptation to apply perceived stereotypes.

Another temptation to be resisted is to assume that all members of the community think and conduct themselves like the judge and share the same values and moral imperatives…It is here that one must be cautious of the concept of moral obligation. Doubtless on his deathbed the wise and just testator might be encouraged to see as his moral obligation to hold out a hand of friendship to those whom he had wrongfully rejected; a hand of forgiveness to those who had wronged him; and to make good, if this be possible, any damage which he has caused to another in his lifetime. It may be that the general community would applaud his decision to make provision in his will for such a person by way of atonement. But this is not the role of Part 4 of the Administration and Probate Act 1958…

Source: Myles McGregor-Lowndes and Frances Hannah, Every Player Wins a PRIZE? Family Provision Applications and bequests to Charity, October 2008, pp 28-29.

45. I am a divorcee who is contesting the will of my late husband. Are there any special factors the court will take into account?

In Re Adams [1967] VR 881 the Court had listed the following special factors relevant to a claim by a woman who had divorced her husband:

  • (1) the testator’s culpability in relation to the grounds of the divorce;
  • (2) that the claimant is the mother of the testator’s children;
  • (3) that she has had the upbringing of the children;
  • (4) the length of time from the separation of the spouses to the testator’s death; and
  • (5) the course which the lives of the two spouses would have followed since the separation.

In Re Cutts [1969] VR 254 further factors were considered to be relevant. These were:

  • (1) the length of the married life together;
  • (2) the age of the plaintiff at the time of the separation, at the time of the divorce and at the time of the testator’s death;
  • (3) the applicant’s prospects of supporting herself after the death of the testator;
  • (4) the extent to which the testator had provided in any deed of settlement for his wife’s future after his death; and
  • (5) the applicant’s prospects of remarriage after the divorce.
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