If you have been left out of a will recently or you feel that the will doesn’t fairly provide for you, you may be eligible to contest the will. Contesting a will is often referred to as a ‘Family Provision Claim,’ ‘Testator Family Maintenance List’ or ‘Part IV’ claim. It is an application made to the court to seek adequate provision from the Estate of the deceased person.
Contesting a will while grieving the loss of a loved one can be a difficult and stressful time. Before you seek legal advice it is important to know if you are eligible or not to contest a will. According to Section 91 of the Administration and Probate Act 1958 (VIC), to be eligible to contest a will you must be:
1. A spouse or domestic partner (registered or unregistered) at the time of death
2. A child of the deceased (including adopted, step or someone who believes the deceased was your parent and was treated as such and are:
(a) Under the age of 18
(b) A full-time student under the age of 25 or
(c) Suffering from a disability
3. An adult child
4. A registered caring partner
5. A grandchild
6. A person who was (and was likely to be in the near future) a member of the deceased’s household
What’s the difference between Challenging and Contesting a Will?
Challenging a will and contesting a will are two very different things. Contesting a will is when you have been left out of the will, or you feel you have been treated unfairly within the person’s will. This is when you need to launch a family provision claim.
To challenge a will, is to dispute a will. Wills are often challenged in cases where the deceased person had been suffering from a mentally debilitating disease at the time they made their will or they were put under pressure to change their will. Most commonly a will is challenged because:
- The will-maker did not have the capacity to make the will at the time it was signed
- The will was subject to fraud, forgery or made under the influence of others
- There was an insufficient amount of witnesses to the signing of the will
- The will was left unsigned
Each state has different laws and regulations for the time frame in which you can lodge a family provision claim. In Victoria, if you choose to contest a will your application must be made within six months after the date of probate or administration following the will maker’s death. However, in some circumstances the time may be extended for a further period at the discretion of the court.
If you’re unsure if you meet the eligibility requirements or you need help with contesting a will, do not hesitate to contact our team at Le Brun & Associates. Our solicitors have extensive experience in dealing with contested matters. We offer expert advice and can discuss your needs during a free 30 minute consultation.