Executors and beneficiaries in Victoria need to be aware that the deceased does not always have the final say on how their estate is dealt with. A will can be challenged, but there are two quite different kinds of challenge, and they follow different procedures.
Challenging a will: two different questions
An estate dispute may be about whether the will is valid, or about whether an eligible person should receive further provision from the estate. These are separate questions with separate procedures and time requirements.
Disputes about whether the will is valid
A will may be challenged on grounds such as:
- it was not properly signed and witnessed
- the will-maker lacked the mental capacity to make it
- the will-maker was subject to undue influence
- fraud or forgery
In some cases the Court can still admit a document that was not properly executed if it is satisfied the will-maker intended it to be their will, and it can correct some mistakes. If a will is found to be invalid, an earlier valid will may apply, or the estate may be distributed under the intestacy rules in the Administration and Probate Act 1958 (Vic).
Concerns about validity need prompt assessment of the evidence and of where the probate process is up to. Before a grant of probate, lodging a caveat may be relevant. After a grant, proceedings to revoke the grant may be needed. A caveat is not a substitute for a family provision claim.
Claims for further provision
A family provision claim (sometimes still called a testator’s family maintenance or Part IV claim) is a request by an eligible person for more provision from the estate. It does not mean the will is invalid. To find out who is eligible, read our guide to who can contest a will in Victoria.
The Court looks at whether the deceased had a responsibility to provide for the applicant and whether adequate provision was made, considering factors such as the size of the estate, the applicant’s financial resources and needs, their age, any contribution they made to the deceased’s welfare and any benefits they already received.
Act promptly
Family provision applications generally must be made within six months of the grant of probate or letters of administration. The Court may allow a late application before the estate is fully distributed, but an extension is not guaranteed. Other estate disputes have different procedural requirements, so please get advice early.
Speak with an estate dispute lawyer
If you are worried about a will, or you are an executor facing a challenge, call Hendersons Legal on (03) 9629 2211 or send us an enquiry. Our estate disputes lawyers can explain your options and the time limits that apply to you.
This article provides general information about the law as described above. It is not advice on your circumstances. Laws, procedures and deadlines can change, so please get advice about your matter, particularly before signing documents or where a deadline may apply.
