All You Need to Know Before Contesting a Will

Initially, you felt left out of the will, but then you learnt that the deceased has not been fair to you. Now you are planning to contest a will. Since you are eligible, you have made up your mind for the legal battle. In legal terms, contesting a will is known as ‘Family Provision Claim’, Part IV Claim, or ‘Testator Family Maintenance List’. It is nothing but an application made to request sufficient provision in the deceased person’s estate.

Although, the moment of grief is an emotional and a stressful moment, it is essential to start making arrangements for contesting a will. The first is to ascertain whether you are eligible for it or not.


Difference between ‘Challenging a Will’ and ‘Contesting a Will’

Contesting a Will is when a person is left out of the will, or he is not provided adequately in the Will. Hence, he/she can make a ‘Family Provision Claim.’

Challenging a Will is when one asks the court to strike out the will. These kinds of disputes arise when a Will maker was afflicted with a mental illness or was under pressure to make changes to the Will.


Contesting a Will: The Eligibility

Victoria was a flexible state for people planning to contest a Will until new legislative reforms to Section 91 of the Administration and Probate Act 1958 (VIC) came into effect on 1 January 2015. Albeit, there is no specification for eligible people; therefore, anyone who thinks the deceased person must have provided with a provision in his estate can make a claim.

The new amendment states that a Family Provision Claim can be either made by the eligible person or his/her behalf. The eligibility for contesting a Will can be defined as:

  1. The spouse (married or de facto) at the time of the deceased’s death
  2. Child of the deceased (adopted, step or anyone who believes the departed to be their parent and was also treated the same). At the time of demise, he was:
  • Below 18 years
  • Full-time student and under the age of 25
  • Suffers disability
  1. Former domestic partner or former spouse of the deceased. If the concerned person could make proceedings under the Family Law Act 1975 of the Commonwealth and did not
  • Take the proceedings
  • Started but were not finalised due to the death of the deceased
  • Child or stepchild not mentioned above
  • Registered partner (caring)
  • A Grandchild


Contesting a Will is Impossible till a Probate is Granted

In most of the cases, after the demise of a person, the executor mentioned in the Will has to file for a Grant of Probate. Probate is a collection of documents validating the deceased’s death. Apart from all the other documents, probate includes the death certificate, Inventory of Assets and the Will. It is kept as a public record in the Supreme Court of Victoria, and anyone can file a plea to see the documents. The fee charged is $24.20


The Time Limit for Contesting a Will

When contesting a Will in Victoria, you have six months. It starts the day a grant of Probate is made successfully. In some exceptional cases, an extension can be granted. The application for extension of time, however, cannot be granted after distribution from the Estate since the distribution of anything cannot be disturbed on the basis of the application or order made afterwards.


One Cannot Contest Distribution of Assets Not Part Of the Will

Every asset owned by the deceased is not considered part of his estate. All in all, there are ‘estate assets’ to be included in a Will and ‘non-estate assets’ that are not.

Estate assets include everything solely owned by the deceased. It includes:

  • Any real property. i.e. buildings, land and real estate
  • Personal property (intangible) – items that cannot be held but are valuable, i.e. business ownership, stocks and digital assets (Twitter, Instagram, Facebook)
  • Property (unproductive), i.e. jewellery, motor vehicles, furniture
  • Cash in any form, i.e. term deposits, savings
  • Intellectual property, i.e. copyrights, royalties, patents

Non-estate assets include all the things with no legal ownership of the owner or have joint ownership with another party. These assets include:

  • Family/Discretionary assets
  • Jointly owned assets – personal and real property
  • Life insurance
  • Company Assets
  • Superannuation

Summing up

Once you know you are eligible and probate is granted, you can go ahead with contesting a Will Victoria. For cost and other evaluation, talk to the experts.

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