Contesting a Will in Victoria
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What’s different in Victoria?
I am a NSW Accredited Specialist in wills and estates law however I also have extensive experience in both Victoria and Queensland. Victorian wills and estates law differs only slightly from NSW law the main difference being the documents and the process. Family Provision law in Victoria, more commonly referred to as Testators Family Maintenance Claims, is governed by Part IV of the Administration and Probate Act 1958 (amended many times since that date). The main difference in Victoria are the rules relating to who is permitted to contest a will and make a claim for provision out of the estate of a deceased person.
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.
In Victoria when a person contests a will of the will maker, the relevant application must be commenced within 6 months from the grant of probate or letters of administration following the will makers death. However, the time may be extended for a further period at the discretion of the Court.
Generally, an extension of time is only granted where the estate has not been distributed and any distribution that has been made prior to the application for an extension of time cannot be changed.
The court has discretion to extend the time. In hearing an application for an extension of time the Court will look at the merits of the applicant’s case and any prejudice to the beneficiaries in extending time.
The main point in Victoria is the court must decide at the date of death, whether the deceased had a responsibility to make provision for the maintenance and support of a claimant and if so, whether the will makers will made adequate provision for claimant giving him or her proper maintenance and support and if not, the court will determine the amount of provision that should be ordered.
Another very different law in Victoria is that a person can contest a will in Victoria even though he or she is not in a direct family relationship. Family relationships have become increasingly complicated with mixed families. Victorian law recognises that a person may have a moral duty to provide for the maintenance and support of another person, even in the absence of a marriage or a de facto relationship, or a parent/child relationship.”
Firstly, in Victoria the court must be convinced that the deceased had a responsibility to make provision for the proper maintenance and support of the applicant and secondly, if the responsibility is established, then the court must make an order that the will of the deceased does not make adequate provision for the applicant. After establishing these two requirements, the court must then consider the amount of provision which should be ordered in favour of the applicant. This is very similar to other States.
Like other States there are no inflexible rules and the court proceeds to consider what order for further provision (if any) should be made. Where a will does not make adequate provision for the proper maintenance and support of an applicant, and further provision for the applicant will not unduly prejudice other beneficiaries in the estate the court adopts a reasonably generous approach to granting provision.
Where the size of the estate is large enough and there will be no serious prejudice to the rights of other beneficiaries, provision is more likely to be granted. The courts in all states seem to rely on providing eligible applicants contingencies of life and may provide for a "nest egg" to guard against unforeseen events and in larger estates "some cream on top".
Contesting a will in Victoria is permitted either:
(a) if there is real estate owned by the deceased situated in Victoria and/or
(b) the deceased was living permanently in Victoria at the date of his or her death and owned personal property anywhere.
(c) There is no "notional estate" in Victoria.
Like other States Victoria has it's own rules regarding the rights to a copy of the will of a deceased. The following people are entitled to a copy.
a) any person named or referred to in the will;
b) any person named in an earlier will as a beneficiary;
c) a spouse at the date of death;
d) a domestic partner of deceased at the date of death;
e) a parent, guardian or children of deceased;
f) any person who would be entitled to a share in the estate if the deceased died intestate;
g) any parent if a minor refer to in will or who would be entitled to a share in the estate if deceased died intestate;
h) any creditor or person who has a claim against the estate.
Other Differences in Victoria
Hereunder I will summarise various facets of Victorian Will Contest 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 contest lawyers and their clients. 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.
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