Challenging a Will in Victoria
Who pays the Legal Costs? As your case gets close to finalisation this will become a very important issue. A substantial amount of your final settlement will be paid in legal costs. You may have heard that your legal costs will be paid out of the estate. Well, don't be fooled; at the end of the day your costs will come out of the estate alright... your share of the estate. Your share could be reduced by as much as half. For more information on this subject give me a call.
Eric Butler 1800 960 156
Please Note: This section is about challenging the legal validity of the will itself. If you've been left out of a will or not received a fair share please proceed to our "Contesting a Will" pages.
Challenging a will is not the same as contesting a will or disputing a will. Challenging is all about whether or not the will itself is valid. The law relating to whether or not a will is valid at law is strictly a matter of factual evidence. The judges do not have the discretion they have in a family provision case.The person challenging a will needs to prove to the court that the will is invalid.
What’s different in Victoria?
The law relating to challenging a will in Victoria is the same for all Australian States. This is called the common law. The same principals apply wherever you are, NSW, Victoria, Queensland or any other State. In other words the law is the same. However some of the Victorian court rules are different and some of the specific legislation is different
The specific law in Victoria is contained in the Administration and Probate Act 1958 (Vic).
And, don't forget, ‘challenging a will’ is challenging the validity of the Will itself whereas ‘contesting a will’ is family provision law.
So, to commence proceedings to challenge a Will there are two possible paths as follows;
- The challenger may file a caveat in the Supreme Court registry thereby temporarily stopping probate from being granted. The court may ask the challenger to provide reasons for the caveat being lodged. If the court does not order the caveat to be removed, the executor/s will be required to file a ‘Statement of Claim’ (or the challenger) setting out the basis upon which they will prove the will is valid. Later at a hearing they will present evidence to support the Claim.
- The process is varied. Sometimes the executor and sometimes the challenger will be required to file a ‘Defence’ to the ‘Statement of Claim’ or vise versa setting out the basis of the defence and later at a hearing provide the evidence to support the allegations.
- If no caveat is filed then either the challenger or the executor/s may file a ‘statement of claim’ in support of their beliefs and the other party will file a defence to that ‘statement of claim’.
Not just anyone is permitted to lodge a caveat. Only A person with 'standing' that being a person who is named in the will or a previous will or who would benefit if there was no will. In other words he or she would be entitled to a share in the estate of all wills were found to be invalid.
Caveats are valid for a period of six months and after wards will lapse. It is possible to apply to the court for an extension of time. If you need yo find out whether probate has been granted yet go to the Probate Applications Index of the Supreme Court of Victoria website for details.
As referred to above the law is similar in all States. The grounds for challenging a will in Victoria, like other States, rely on the common law include, lack of will maker capacity; lack of knowledge and approval; undue influence; fraud and forgery.
The process depends upon who starts first and what if any agreement is arranged between the legal representatives of the parties as to the best the most effective manner to approach the allegations and the defence.
As with all legal process these days the allegations and defences can be numerous and varied and it is up to the lawyers to ensure the process is handled with the best interests of the clients and the court. Case management is governed by the overarching purpose as set out in the Victorian Civil Procedure Act 2010. The act refers to many matters including what is know as the 'overarching purpose' of a matter. The relevant section od the Act reads;
(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute.
(2) Without limiting how the overarching purpose is achieved, it may be achieved by—
(a) the determination of the proceeding by the court;
(b) agreement between the parties;
(c) any appropriate dispute resolution process—
(i) agreed to by the parties; or
(ii) ordered by the court.
However in the case of Wills, whilst sometimes agreement can be reached regarding the process or even a settlement of the terms of the Will, in Wills cases the court must approve any changes to a will.
Other Differences in Victoria
Hereunder I will summarise various facets of Challenging a Will in VIC which differs slightly from other Australian States. As I have mentioned in other pages on this site the law is much the same in all Australian States however the specific wording in the legislation of each State can be a trap for lawyers and their clients Challenging a Will. Judges in court proceedings are very often limited in their determination of a case by the precise wording of the legislation or a practice note of a particular State.
Give me a call anytime. I will personally answer the phone. I'm happy to discuss with you the three (3) most common mistakes made by will dispute contestants that can lead to long delays, huge legal cost and an unhappy end. No cost, no obligation. Choose me to represent you or not, at least you will have the knowledge to start on the right track.
Eric Butler: 1800 960 156