Have you been unfairly left out of a will?
There are certain circumstances where a person has been left out of someone’s will altogether, or where they feel the provision from the estate, as provided for in the will, is inadequate.
Am I eligible to contest a will?
Certain persons under the Administration and Probate Act 1958 (VIC) (“the Act”) are eligible to seek further provision from a deceased’s estate, commonly known as family maintenance claims.
A claim can also be made by an eligible person if someone dies intestate (dies without a will). Under these circumstances (in the absence of any claim), the Act outlines the relevant persons who will share in a deceased’s estate and in what proportion. .
Some of the categories of eligible persons to make such a claim include:
De facto partners
Children, stepchildren, and dependents
The Court must, however, be satisfied that the deceased person had a moral duty to provide for the eligible persons’ proper maintenance and support and that the provision in the will is not adequate. What constitutes adequate provision and proper maintenance and support will be different in every matter and depend on each individual’s circumstances.
The Court will not, when making a family provision order, disregard the deceased’s wishes as outlined in their last will. They will also consider evidence as to the reasons behind the deceased’s decision to include, or exclude, any persons.
What should I consider before making a claim against an estate?
When deciding whether you should make a claim, it’s important to consider:
- the size of the estate (parties must ensure that claims and legal fees remain proportionate to the size of the estate);
- your eligibility to make a claim;
- whether you or any other beneficiaries or claimants contributed to the building up of the estate;
- any benefit provided to you (or other beneficiaries or claimants) by the deceased, such as an early inheritance;
- any “disentitling”conduct , or extraordinary circumstances or conduct on your part (i.e. something you may have done which caused the deceased to leave you out of their will/ or leave you a smaller portion of their estate).
Who usually defends a claim made against an estate?
The executor/s of the estate, in their capacity as legal representative.
Beneficiaries of an estate can also participate in the proceeding (for example, to defend their entitlement) although the executor will generally do this on their behalves. Commonly, an executor will also be a beneficiary.
What is the process to contest a will?
Following an initial eligibility discussion with one of our experienced estate litigation lawyers, we may recommend attempting to negotiate a settlement without litigation (the issuing of formal court proceedings). In most instances, this is an ideal starting point to starting the process.
If litigation is necessary, an Originating Motion will be filed in either the County or Supreme Court of Victoria.
Usually, if proceedings are issued, the Court will make orders requiring the parties to attend a mediation or settlement conference. In our experience, most matters settle by negotiation at this stage, alleviating further legal costs and expenses often associated with a contested Court hearing.
Contact an Estate Disputes Lawyer today.
Due to there being a large number of variables, we recommending speaking to an experienced estate disputes lawyer to obtain proper advice about a potential claim.
Please note: there are strict timeframes for making a claim.
Following an initial eligibility discussion, a lawyer will recommend your best course of action.
Learn more about the experience and process of contesting a will
Our #contestawillwithrobinsongill series is designed to demonstrate the real-life realities of contesting a will using easy-to-read stories, as opposed to legal case notes.
Each story has been fictionalised - but is based on real decisions in the Victorian Court system.
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Three older siblings successfully contested their deceased father’s will for having largely left them out being largely favourable to the youngest sibling.