What You Should Know About Contesting A Will

If you have been left out of a Will or believe you have been treated unfairly in a Will you may be able to contest it by making a Testator’s Family Maintenance (TFM) Claim. 

What Does It Mean To Contest A Will?

Contesting a Will is different from challenging (or disputing) a Will. Challenging a Will is done with the goal of rendering the Will invalid, generally because a person believes that the deceased person was not mentally capable at the time of signing or was pressured to make or change their Will.

Alternatively, a person may contest a Will If they believe they have not been left with adequate provision from the estate of the deceased after their death. The TFM Claim is made with the goal of obtaining a greater amount of the deceased estate that would be considered an adequate amount. 

The person who wants to make a TFM Claim must be closely related to the deceased and must show that the deceased had a moral duty to provide for them.

Who Can Contest A Will?

In the state of Victoria you are able to contest a Will if you are eligible, you believe that you have been left without adequate provision, the Will of the deceased is valid and a claim is made within 6 months of the date on which probate has been granted. TFM Claims in Victoria are governed by the Administration and Probate Act 1958 (Vic).

A person who is eligible to make a TFM Claim can be: 

• The spouse or domestic partner at time of death; 
• A former spouse/domestic partner who could have made proceedings under the Family Law Act 1975 at the time of death, but have not taken those proceedings or had not finalised those proceedings at the time of death;
• A registered caring partner;
• Children of the deceased (including adopted or step-children who were treated as the deceased’s child) who at the time of death were younger than 18, a full-time student under the age of 25, or suffering from a disability;
• Grandchildren; 
• Some other family members in certain circumstances that can be discussed with your lawyer. 

Each case of contesting a Will is different, and there are various factors that the Court considers when determining whether a person has been provided with adequate provision. Seeking advice from your lawyer will help you understand what you can expect for your specific case. 

(For more information about the following Acts follow these links:

Family Law Act 1975: http://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/

Administration and Probate Act 1958: http://classic.austlii.edu.au/au/legis/vic/consol_act/aapa1958259/s91.html)

The Process

If you decide to make a TFM Claim, the Court will consider the following factors:

• the deceased’s Will; 
• evidence regarding why the deceased made their Will the way they did; 
• whether the deceased had a moral duty to provide for the applicant contesting the Will – including the relationship and any physical, mental or intellectual disability of the applicant; 
• whether adequate provision was made for the applicant, and 
• how changes to the Will may impact other beneficiaries. 

Additionally, the Court will consider the financial needs and age of the applicant, as well as whether the deceased had assumed the responsibility of maintaining the applicant before their death. 

If the Court finds that the deceased’s estate fails to make adequate provisions for the applicant, then an amount will be determined based on both the size of the deceased estate and the needs and capacity of the applicant.

The amount considered to be an adequate provision is different in every case as it is determined by each person’s unique situation.

Contesting a Will can be a stressful and complicated process for the applicant. Obtaining expert legal advice is an important first step to assess your claim and understand your rights.

Parts Of A Will That Cannot Be Contested

There are assets that may be included in a Will that you are not able to contest the distribution of; you are able to contest “estate assets” such as real property, unproductive property, cash, intangible personal property and intellectual property. “Non-estate assets” are assets that the deceased does not have legal ownership over or has joint ownership over, such as jointly-owned assets, trusts, company assets, life insurance and superannuation. Assets that do not form part of the estate are not able to be contested.

Contesting a Will can be a stressful and complicated process for the applicant, obtaining expert legal advice will make this process easier by helping you to understand your rights and obligations. You can get in touch with a member of the JPLegal team to discuss your specific situation or get advice here.