Disputing 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 page is about disputing a will on the grounds of poor administration of the estate or executor negligence. If you've been left out of a will or not received your fair share please proceed to our "Contesting a Will" pages.
A will dispute is not the same as challenging or contesting a Will. A dispute over a Will can arise for many reasons not related to a ‘challenge’ or a ‘contest’ such as an argument as to what the will meant; how the will is being administered or distributed; whether there are errors in the Will; whether a beneficiary named in the Will is not entitled because of a crime committed; removal of an executor or administrator or other disputes about the use of a ‘power of attorney’ during the deceased lifetime.
What’s different in Victoria?
The law relating to disputing a will in Victoria is basically the same as for all other Australian States however there are some slight differences in some of the types of will disputes. Also please note that the law in Victoria like other states is base on the common law from many court cases over the years plus in Victoria the Administration and Probate Act 1958 and Part IV of that Act for Testators Family Maintenance Claims known in the other States as Family Provision Claims.
Here are some differences for Victoria.
- The ademption rule
The legal term ‘ademption’ occurs when a gifted item is no longer available to a beneficiary named in the will because the deceased no longer owned the item at the time of his/her death.
In Victoria the ademption rule is part of the common law. As at 2107 there is no specific legislation regarding ademption. Ademption applies only to specific gifts and not general gifts and to date there no exception to the rule in Victoria.
However, for example a specific gift of property owned by the will-maker and described in the will in a way that separates it from other assets, such as ‘my boat’ will fail if the boat is no longer owned by the deceased upon his/her death.
Compare however, a general gift that the will-maker directs will be obtained by the executor and paid out of the estate by the executor. For example a gift of $5000 would not fail for ‘ademption’ because other assets would be available to satisfy the gift.
- Notional estate
There is no ‘notional estate’ law in Victoria.
- The forfeiture rule.
The basic principle/rule is that a person should not benefit from another will if that person caused the death of the will maker. It is an expression of the fundamental principle that crime should not pay, and it conveys the community’s strongest disapproval of homicide.
As at 2016 in Victoria there is no exception rule. However it is anticipated the government will enact legislation possibly during 2017 and that the rule should continue to apply in all cases of murder and most other cases. However, some reform is expected because in a small number of cases the rule does not operate fairly.
The introduction of a new Forfeiture Act has been recommended, to clarify when the rule applies and how it affects the distribution of the deceased person’s estate. It was also suggested that the Supreme Court should be able to modify the effect of the rule in individual cases, except murder.
The filing of caveats in the Probate Office of the Supreme Court of Victoria is also a little different to other States. For example in NSW when a caveat is lodged the executor can file a 'motion" to have the applicant attend court on short notice to provide evidence sufficient to satisfy the court the caveat should remain in place until the court is satisfied from evidence from the executor that the will is valid.
However in Victoria the executor can call upon you to file your evidence in court whereupon the executor will respond with his or her own evidence regarding the validity of the will.It's really only the process that is different to NSW. In the end (the full court hearing, if the judge is satisfied a full hearing is warranted) full evidence will be submitted to the court and witnesses subject to cross examination before a judge to determine the result.
Of course another major difference between say NSW and Victoria is the time limit on bringing a claim for family provision. In NSW it's 12 months from the date of death however in Victoria it's six months from the date of probate being granted. To ensure you don't miss out on being informed of a grant of probate you can lodge another/different form caveat with the court seeking to be notified as soon as probate is granted. you will then have six months to lodge a Testators Family Maintenance Claim also known as a Part IV Claim.
Other disputes where the law may be localized is that relating to what are now referred to as "digital assets". These assets may arise simply by a person using the internet. Some assets might not be included in the will of the deceased but include rights to emails; online banking records; commercial advertisements; commercial networking and marketing; website ownership and much more.
So, if any of these assets have been overlooked in the will and either not given to a beneficiary and there is no "residue" clause in the will the rules of intestacy apply and there could be a real argument with those entitled on intestacy and those that might have some claim to ownership or joint ownership. In those cases the law of Victoria and the courts of Victoria will be the forum.
Other Differences in Victoria
Hereunder I will summarise various facets of Victorian Will Dispute Law 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 Victorian will dispute lawyers and their clients. Judges in court proceedings are very often limited in their determination of a case by the precise wording of legislation or practice notes and procedures 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