Challenging a Will

Testator Family Maintenance Claims

The purpose of a Will is to clearly set out your wishes and testamentary intentions for the distribution of your assets upon your death. As individuals, we have the right to freely dispose of our assets in any way we see fit. However, at law, a Will can be challenged where a person fails to make adequate and proper provision for people whom they owe a moral responsibility to under their Will. Usually these people will be family members and/or dependants.

Whether a person is excluded from a Will entirely, or receives a small portion of the estate; there are avenues they can take to contest the Will. The relevant legislation differs nationwide. In Victoria, a person can make an application under the Administration and Probate Act 1958 (Vic) to contest a Will. These types of claims are commonly known as Testator Family Maintenance (TFM) or Family Provision (FP) applications.

Eligibility

In Victoria, there are no defined categories for eligible applicants. Therefore, anyone can apply provided they are able to demonstrate that the deceased had a responsibility to provide for them under their Will. Generally this would include the following people:

Spouses (including de-facto);
Children, stepchildren, adopted children;
Grandchildren;
Parents;
Siblings; and
Any other dependant.

However, each case varies and it will ultimately depend on the facts as to whether any one person is justified in contesting a Will.

Time limitations

There are limitations in which an applicant must abide by. The limitation periods vary from State to State. In Victoria, an applicant can only make a claim once a grant of representation has been made. A grant of representation is an application made by the Executor/s of a Will seeking confirmation by the Court that they are authorised to handle the deceased’s estate. This is usually obtained within 6 to 8 weeks from the deceased’s death.

Once a grant of representation- either Probate or Letters of Administration- has been made, then a person contesting the Will has 6 months from that date in which to file a TFM claim.

An applicant can also make a late application if the limitation period has expired; however, there would need to be strong grounds for the late application. Moreover, a late application will only be granted where the estate has not been fully administered or where there is no detriment to the beneficiaries.

Time limitations are very important. If you are thinking about contesting a Will, obtain legal advice as soon as possible.

Estate Administration

Where a person intends to contest a Will, they will need to notify the Executor/s of the claim. This will ensure that the estate is not distributed prematurely. Executor/s are unable to administer an estate until 6 months after a grant of representation.

If the assets are administered prematurely despite notification from an applicant, then the Executor/s will be held personally liable to recover the funds.

Factors

The Court will take into consideration a number of factors in deciding whether an applicant is firstly, someone for whom the deceased had a moral responsibility to provide. If this test is satisfied, the Court must then determine what adequate and proper provision is and whether or not the deceased failed in his/her duty to provide for the applicant. The Court will decide this based on a number of factors detailed in section 91 (4)(e)-(p) of the Administration and Probate Act 1958 (Vic). The factors include:-

(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;

(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;

(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;

(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;

(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;

(j) the age of the applicant;

(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;

(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;

(m) whether the applicant was being maintained by the deceased person before that person’s death (either wholly or partly) and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;

(n) the liability of any other person to maintain the applicant;

(o) the character and conduct of the applicant or any other person; and

(p) any other matter the Court considers relevant.

Mediation

It is compulsory for all TFM claims to be first referred to Mediation. Mediation is an informal meeting between the relevant parties to a proceeding. It is an opportunity for the parties to explore options for settlement. Most claims are successfully settled at Mediation. In the event that a matter is not settled at Mediation, it is then listed for a Supreme or County Court trial.