Defending a Will in Victoria
Summary by Eric Butler... Free Call: 1800 960 156 Ask by email: [email protected]
- 40 years a lawyer and Experienced in over 5,000 Will Disputes.
- Listed in Doyle's Guide to Best Lawyers in Australia.
- Internationally Recognised STEP member as Expert in Will Disputes.
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If you're an Executor or Defendant defending a family provision claim or any other claim against the estate I will give you the best advice on how to deal with the claim to avoid the frustration of delays, huge legal costs and a disappointing ending.
At the end of a case legal costs become a very important issue and can amount to a very large proportion of a settlement. For more about legal costs give me a call.
What’s different in Victoria?
A major difference in victoria is the time in which a claimant must lodge a claim. In Victoria a claim must be lodged within six (6) months from the date of probate being granted of the deceased will. Extensions of time are only permitted in exceptional circumstances.
The other major difference in Victoria is the fact that there is no list of persons classed as being eligible to make a claim for family provision. The rules provide eligibility for any person who was wholly or partly dependant upon the deceased for proper maintenance and support and at the time of death the deceased had a moral duty to provide for the person and the deceased failed to provide adequate provision for the person for their proper maintenance and support.
Any person who can show that the person who made the Will had a ‘moral duty’ to provide for them can challenge a Will by starting a Supreme Court process called ‘testator’s family maintenance’.
Generally the person who wants to make a claim has to be closely related to the person who died. Examples of this are:
(a) a spouse or domestic partner (or former partner eligible to apply to court for a property settlement)
(b) a parent, child or stepchild, or someone treated as a child by the Will-maker.
A registered carer, member of the household or grandchildren may also be eligible if they can show that they were dependent or partly dependent on the Will-maker.
The court will look at all of the facts, including:
- evidence about why the Will-maker made the Will as they did
- whether the person who died had a 'moral duty' to provide for the claimant
- whether adequate provision was made for the claimant, if not, what provision should be made
- the physical, mental or intellectual disability of the claimant and any other beneficiaries
- whether the person was fully or partly dependent of the will maker
- the nature of the relationship between the claimant and the will maker
- how the other people named in the Will may be affected by any provision granted to the claimant.
So, all of these factors need to be taken into account when defending a will. It's a matter of looking the claimants financial details and need and then looking closely at the financial details and need of the beneficiaries and with the size of the estate in mind (less legal costs) you need to calculate what if any provision should be provided to the claimant.
Of course there are other factors to be taken into account including the claimants relationship with deceased and any relevant conduct of the claimant including any estrangement between the claimant and the deceased. However those beneficiaries already named in the will only need to provide their financial details not details of their relationship with the deceased because he or she has already named them in the will.
A beneficiary is not obliged to provide to provide his or her financial details to the court however if they are not provided the court will assume that the person does not a pressing financial need.
When defending a validity challenge or a Part IV Family Claim executors or administrators have a responsibility to protect the estate from legal costs blowing out. The first duty of an executor or administrator is to protect the assets of the estate, especially cash. It can be tempting to fight all the way on principle and that usually leads to more money in the pockets of lawyers rather than more money left for beneficiaries.
How do you overcome the temptation? First step is to ensure you choose a lawyer with the capability of getting to the real issue of the dispute quickly and to give you viable options early. There are several ways th shorten proceedings and save costs. Early offers of settlement can be very useful so long as the offers are well thought out and well founded in law. However that is not as easy as it sounds.
The last thing you want is to find yourself in a court hearing being cross examined by the opposition barrister on your affidavit evidence in front of a judge. However you also obviously want to avoid agreeing to a settlement of your case that was either rushed or not fully thought through. Unfortunately from time to time these things do happen. There have been many cases where the settlement agreement/document itself is challenged and sometimes leads to a court hearing regarding that agreement.
And remember in all matters, whether a will dispute or will challenge of family provision claim (in Victoria, Testators Family Maintenance claim AKA a Part IV claim) remind your solicitor to check before costs have mounts that;
(a) In the case where some is challenging the will or disputing terms of a will check early that they have standing to do so. Before costs are incurred.
(b) In the case where you might be defending a Part IV claim remind your solicitor, before costs are incurred to ascertain as early as possible that the claimant really does have at least a reasonable case. The assess as soon as possible every avenue for settlement to save legal costs.
Other Differences in Victoria
Hereunder I will summarise various facets of the law of Defending a Will in Victoria 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 when defending a will in Victoria. Judges in court proceedings are very often limited in their determination of a case by the precise wording of the legislation 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