There are many reasons why a person might contest an unfair Will. A family provision claim is based on an applicant’s right to be adequately provided for by a deceased person where a Will fails to do that. A successful claim will result in a redistribution of the estate assets in favour of the applicant.
Will contests can arise in very typical, or unusual circumstances. In many cases, the deceased person simply fails to update the Will after his or her personal circumstances change. For example, when a person divorces or separates and then re-partners the old Will may still benefit the ex-partner and may include or exclude beneficiaries not intended by the deceased person.
In other cases, the terms of the Will may be unfair given the unique relationship between the deceased and an applicant. This may occur where only one of several children provide significant care to an elderly parent for an extended period and, in doing so, forego or postpone several aspects of their personal and working life.
Family provision claims may also be made against the proposed distribution of an intestate estate.
No matter what your situation, if you believe you have not been adequately provided for under a Will it is important to discuss your rights promptly with an experienced lawyer. We have represented and achieved excellent results for many clients with genuine family provision claims and will provide timely and considered advice and guidance.
Am I eligible to contest a Will?
An eligible applicant must fall within the criteria prescribed by the Administration and Probate Act 1958 (Vic). An ‘eligible person’ includes:
- A spouse or domestic partner of the deceased;
- A former spouse or domestic partner who at the time of the deceased’s death had not reached a property settlement with the deceased;
- An adult child (subject to financial needs criteria);
- A child, adopted child or step-child of the deceased who at the time of the deceased’s death was a minor, full-time student aged between 18 and 25 years, or of any age and under a disability;
- A person, child under 18 years, student aged between 18 and 25 years or child under a disability, who for a substantial time believed that the deceased was his / her parent and was treated by the deceased as his / her natural child;
- A registered carer of the deceased;
- A grandchild of the deceased (subject to dependency criteria);
- A member of the household of which the deceased was also a member, or a person who was previously a member and would have likely been a member in the near future (subject to dependency criteria).
Settling your claim
Once eligibility is established, an applicant must show that the deceased owed a moral obligation to provide for him or her and failed to do so.
Our lawyers are experienced negotiators and will make every effort to settle your matter out of Court. Most claims can be settled through negotiation and / or mediation. Claims will be assessed by both sides, in light of the parties’ respective evidence and the factors that a Court would take into consideration, should it be litigated.
- The applicant’s personal circumstances including age, health and mental state;
- The needs, financial resources and earning capacity of the applicant compared with those of any other eligible persons or the actual beneficiaries;
- The size of the estate;
- The deceased’s intentions with respect to the applicant;
- The nature and length of the relationship between the applicant and the deceased and the deceased’s obligations to that person and any other person including the actual beneficiaries named in the Will;
- The character and conduct of the applicant;
- Whether the applicant made any financial or non-financial contributions to the deceased personally or to his or her property.
Family provision claims are complex and must be made within strict timeframes. If you believe you have been left out of a Will or treated unfairly and would like a confidential discussion our lawyers are happy to assist. We will determine your eligibility to make a claim, prepare your matter and negotiate and settle your case, avoiding expensive litigation wherever possible.