Contesting a Will in Victoria
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.
Contesting a Will in Victoria.
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.
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".
Other Relevant Factors in Victoria:
The following factors allow you to claim in this State.
(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.
Contesting the Validity of a Will.
This is not the same as contesting a will on family provision grounds or disputing the contents of a will for errors. 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.
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.
Contesting the validity of a will is not the same as contesting a will on family provision grounds or disputing the contents of a will for errors. 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.
Will Dispute Differences 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 Dispute May Also Require the Assistance of a Will Contest Lawyer in Victoria
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.