What is the difference between challenging a Will and contesting a Will?

Challenging a Will is different to contesting a Will. Challenging a Will means bringing a case alleging that the Will is not valid, for example that it was executed improperly or under duress, or the Testator was of infirm mind at the time of execution. To challenge a Will is to argue that the Will itself should be struck out. 

Contesting a Will means bringing a claim for Family Provision, also known as a Party IV or Testator’s Family Maintenance List claim. In Victoria, such claims are governed by the Administration and Probate Act 1958 (Vic).  In practice claimants for Family Provision are usually seeking a share or a larger share of an estate on the basis that they have not been adequately provided for. 


Who is eligible to contest a Will?

Parties with standing to contest a Will have been reduced in recent times. They are defined as follows:

    1. The spouse or domestic partner at the time of death;
    2. A child of the deceased (includes an adopted or stepchild or someone who believed the deceased to be their parent and was treated as such) who, at the time of death, was:
      • Under the age of 18; or
      • A full-time student under the age of 25; or
      • Suffering from a disability.
    3. A former spouse or former domestic partner of the deceased if a property settlement had not been reached at the time of death;
    4. A child or stepchild of the deceased not referred to above (e.g. adult children) where they can show grounds;
    5. A grandchild;
    6. A registered caring partner of the deceased;
    7. The spouse or domestic partner of a child (i.e. son or daughter-in-law) of the deceased where that child has died within one year of the deceased’s death;
    8. A person who was or had been (and was likely to be in the near future) a member of the deceased’s household.


Can you contest a Will before Probate is granted?

No, but you can challenge the validity of a Will before the grant of Probate if there is a question as to its’ integrity, such as an argument that the Testator was unduly influenced or suffering from dementia at the time of execution.


What is the limitation period for contesting a Will?

6 months after the grant of probate is the time allowed to make a claim under the Act. Applications out of time will be considered on their merits by the Court, but it is best to bring a claim before 6 months elapses to avoid having to invoke the Court’s discretion on time.


What does the Court take into consideration?

Some of the main factors the Court will take into consideration are:

    1. Whether the estate had already made adequate provision for the claimant;
    2. Whether the claimant is capable of providing for themselves;
    3. The effect the claim would have on other beneficiaries to the Will;
    4. Whether the deceased had a moral duty to provide for the claimant. The Court will consider the contents of the deceased’s Will, the relationship of the claimant to the deceased including past conduct, and any other evidence of the deceased’s intentions of provision for the claimant. 

The Court has discretion on how much weight (if any) to place on the above considerations given the circumstances of the case. 


What does “adequate provision” mean?

The Court will consider the needs and circumstances of the claimant within the context of the size of the estate and the effect on the other beneficiaries. Adequate provision is very subjective depending on the ability, needs and existing resources of the claimant and so it is very difficult to predict how much a successful claimant might receive. A financially independent and employed claimant is likely to receive much less than a disabled unemployed claimant with special needs.


Not all assets are contestable, some asset classes are outside of a Deceased’s Estate. 

Some classes of assets are not part of the deceased estate, and thus not governed by the deceased Will and not able to be challenged by way of a Part IV claim. Such assets include:

    1. Superannuation;
    2. Assets held in a discretionary trust;
    3. Proceeds of insurance policies where there is a nominated beneficiary;
    4. Jointly owned assets between a deceased and another where the surviving owner becomes entitled to the whole of that asset as survivor of the deceased;
    5. Specific assets owned by a private company, notwithstanding that the value of the shares held by a deceased in the company would be an asset of the estate.


Who covers the costs of contesting a Will?

An unsuccessful claimant is likely to be ordered to pay costs. Therefore, particular attention must be given to the likelihood of success before issuing proceedings as a spurious claim is likely to result in a costs order against the applicant.  The costs of a successful claim will usually be ordered to be paid by the estate. 

 

Should you have any queries in regard to contesting or challenging a Will, please contact Matthies Lawyers for an obligation free consultation or call +61 3 8692 2517 today.

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.

 

James Matthies

James is the founder of Matthies Lawyers. He is an Australian qualified Lawyer. In 2006, James was admitted to practice in the Supreme Court of Victoria and the High Court of Australia after completing his articled clerkship and gaining a Bachelor of Laws and Bachelor of Arts at Monash University. Law Institute of Victoria | Law Council of Australia | About James