A person challenging a will in Victoria may check the will’s validity if the individual believes that one or more of the following applies:
Alternatively, a person may challenge a valid will if they have not received adequate provision under the will as part of a Testator’s Family Maintenance claim under the Administration and Probate Act 1958 (VIC).
Generally, a person may make leave property in their will to whomever they please. This includes naming family, friends, and charities as beneficiaries of the estate. However, there is a moral duty to make provision for those closest to them. Furthermore, family members or persons who share a close personal relationship who will face undue hardship as a result of being left out of the will can make an application challenging the will in Victoria, including:
In deciding whether an applicant is entitled, a court may consider the age, financial resources, and any physical or mental disabilities of the person.
A person would normally bring a claim to challenge their entitlement under a will within 6 months of the grant of probate or administration. Not only that, affected parties can apply for an extension if the final distribution of the estate has not occurred. Also, distributions that have occurred prior to the application cannot be changed.
When making an order the Court will consider:
The decisive factor to be taken into account by the Court is whether the will and/or the provisions of in Part 1 division 6 of the Administration and Probate Act 1958 will adequately provide sufficient maintenance and support for the applicant.
Additionally, the Court can impose conditions, limitations and restrictions, as the Court sees fit. Hence, this is to prevent or defeat any alienation or charges upon the receipt of any benefits received from any provisions made under the order.
Family provision orders take effect through a codicil to the original will. Also, if the deceased did not leave a will, the order will be enforced as a modification to the provisions made in Part 1, Division 6 of the Administration and Probate Act 1958.
Action will not be taken against the personal representative of the Estate has been distributed properly. Furthermore, this allows the deceased’s partner or child to receive ongoing maintenance support or education when totally or partially dependent on the deceased immediately before the deceased’s death. Moreover, this is regardless of whether the personal representative received notice of an application or intended application in respect of the Estate. Thus, any notice must be made in writing to the personal representative by the applicant or his or her solicitor. Once a notice lapses, it cannot be renewed.
An order made by the Court must stipulate:
It is possible for an order to be rescinded or altered by application to the Court by:
A notice of application would need to be served on all beneficiaries of the family provision order that is being sought to be rescinded or altered.
An applicant for a family provision order may be ordered to pay costs if the Court is satisfied that the application has been made frivolously, vexatiously or with no reasonable prospects of success.
AussieLegal offers a number of legal kits and paralegal services. These kits are specifically designed to help family members make a personal application and save thousands in legal fees. One of the kits aims to help in challenging a will in Victoria.
Call us on 1300 728 200 to discuss your situation with one of our consultants.
