Dealing with the loss of a loved one is a difficult and emotional experience. It can be so much worse if you then discover you have been left out of their Will or excluded from provision in their Estate.
You may wonder if there is anything you can do. You can, but only in certain circumstances.
What are the circumstances in which I can contest a Will?
In Victoria, you may be eligible to contest a Will if:
1. You are an Eligible Applicant; and
2. You believe that you have been left without adequate provision; or
3. If the Will of the deceased is invalid.
This blog considers who is an Eligible Applicant.
How do I know if I am an Eligible Applicant?
Under Victorian law you are an Eligible Applicant if at the time of the deceased’s death you were:
1. The spouse or domestic partner of the deceased; or
2. The former spouse or domestic partner of the deceased who was able to take proceedings against the deceased under the Family Law Act 1975 and:
Who did not take such proceedings and was prevented by the death of the deceased from taking them, or
Who did take proceedings and could not finalise them because of the death of the deceased; or
3. A child of the deceased who is:
Under the age of 18 years old;
A full-time student between the ages of 18 and 25 years old;
A step child of the deceased under the age or 18 or a full-time student between the ages of 18 and 25 years old;
An adult child who has a financial need; and
A person who has been treated by the deceased as their natural child; or
4. A grandchild including step grandchild/ adopted grandchild provided you were financially dependent on the deceased at the time of death; or
5. A household member of the deceased provided you were dependant on the deceased for proper maintenance and support; or
6. A carer of the deceased who was in a "registered caring relationship" with the deceased as defined under the Family Law Act 1975. A relationship of this nature must not be for a "fee or reward".
How long do I have to contest a Will?
In Victoria, you have six months from the date that Probate has been granted to the Estate Executor to contest a Will. A claim may be brought “out of time” by approval of the Executor or by the court provided that the Estate has not yet been distributed.
How do I contest a Will?
An Eligible Applicant can contest a Will by an application in the Supreme Court of Victoria.