Can I Challenge a Will?

You may have recently found out that your spouse, a family member or someone upon whom you are financially dependent has recently passed away. You may also have been made aware that little or no provision from the deceased person’s Estate was left to you. If this is the case, you may be eligible to challenge the Will.

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Are you an eligible person?

The first thing to consider is whether you are eligible to bring a claim to challenge the contents of a Will.

The Administration and Probate Act 1958 (Vic) sets out classes of people who are eligible to challenge a Will.  These classes of people are:

• Spouse, defacto partner (or former spouse or defacto partner);
• Child;
• Stepchild;
• A grandchild who was financially dependent upon the deceased;
• A person who for majority of their life believed they were a child or stepchild of the deceased;
• A person who resided with and was financially dependent upon the deceased.

If you are an eligible person and you feel the deceased had a moral obligation to make some sort of provision for you from their Estate, then you may be able to bring a claim and ask the Court to alter the deceased person’s Will to make provision for you.

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Part IV of the Administration and Probate Act

The next important step is bringing your claim within the required time period. Section 99 in Part IV of the Administration and Probate Act is clear that any application made to the Court for family provision order must be made within 6 months of the grant of probate being made.

It is important to note that there is no law of equality, just because a person has multiple children does not mean that they are obligated to leave their Estate equally.

The Court looks at many factors before deciding to alter a person’s Will. They look at factors such as:

• Each person’s relationship with the deceased;
• Whether they have had a falling out and, if so, when and why;
• Whether there is or was any financial dependency on the deceased; and
• They also look at the person who makes the claim and their ability to support themselves financially.

If you have been left out of a Will and wish to receive advice on whether there is merit in you bringing a claim against an Estate we have an experienced team of lawyers who can provide you with advice and assist you through this difficult time. Call us (03) 5625 2544 or book an online appointment with us today to have a confidential discussion.

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Disclaimer: The information in this post is general in nature. This does not constitute legal advice and should not be relied on as such. Please contact one of our Lawyers if you are seeking advice about a specific legal matter.

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