Who Can Contest A Will? (Vic)

Until 2015, there was little restriction on who could contest a will in Victoria. With the introduction of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014, amendments were introduced to the provisions of the existing succession legislation to stipulate that only a select list of people close to the deceased were eligible to make a Testator’s Family Maintenance (TFM) Claim. This article clarifies who is included on this list of who can contest a will in Victoria.

Who Can Contest A Will In Victoria?

The new legislative provisions were designed to prevent “fringe dwellers” from making a claim against a deceased estate and to simplify the eligibility criteria for close relatives of the deceased. Under section 90 of the Administration and Probate Act 1958, eligible people can apply to the Supreme Court of Victoria using a TFM claim. If the court finds that the claimant was entitled to a degree of provision that was not reflected in the testator’s will, it will order a redistribution of the deceased estate in favour of the claimant.

Spouses

Under succession law, the spouse of the deceased has priority to inherit and to contest an estate. Here, the term “spouse” refers not only to a wife or husband but also to either a registered partner or a de facto domestic partner of the deceased. A de facto relationship is defined in the Family Law Act 1975 as two individuals who are not married or related, living as a couple on a genuine domestic basis. In order to prove eligibility as a domestic partner, the claimant must share a child with the deceased who is still a minor when the testator passes away, or have lived with the deceased continuously for two years immediately before the testator’s death.

A registered domestic relationship confers the same rights on a claimant as a marriage certificate. This type of relationship is defined under the Relationships Act 2008 as two unmarried adults who, irrespective of their gender or living arrangements, are in a committed relationship and give each other personal or financial support. Registering a relationship legally establishes the relationship for social security reasons and succession law.

A former marital, de facto or registered spouse can also contest a will in Victoria, if they were about to commence or were in the middle of proceedings against the deceased in Family Court. This is intended to account for any obligation that the deceased had towards a former spouse.

Children

A minor child of the deceased can contest a will in Victoria. According to estate law, a child includes biological and legally adopted children, and also stepchildren and “assumed” children of the deceased. The child can also make a TFM claim if they under twenty-five and still a full-time student, or disabled. Any other adult child may only contest a will in Victoria if they can prove that they are in financial need and lack the means of adequately providing for their own maintenance.

A Carer Can Contest A Will

A carer is someone who provides unpaid support and care to a family member or friend who is frail aged, or has a disability, chronic condition, terminal illness or drug or alcohol dependency. A carer can contest the will of a testator if they were in a registered caring relationship with the deceased for no recompense, and not a partner of the deceased.

A Dependent Can Contest A Will

Grandchildren, including those who are related through blended families and adoption, can only contest a will if they were also a dependent of the deceased. Similarly, a member of the deceased’s household can contest a will if they were at least partly dependent on the deceased for maintenance and support. To qualify as a dependent, the claimant must provide evidence that the deceased supported them financially to meet their living expenses. For example, a member of the deceased’s household who lived rent-free could argue that their living arrangements constituted dependence on the deceased.

Who Cannot Contest A Will In Victoria?

Those who are not automatically eligible persons in Victoria under the new limitations include grandchildren of the deceased, and siblings, nieces and nephews, cousins, and housemates of the deceased.

Time Limits To Contest A Will

Eligible persons can only contest a will within set time frames. In Victoria, a claimant only has six months to make a TFM claim. After this point, a claimant may only make an application if they can convince the court that there is adequate justification for the delay in making a claim. Exemptions are rare because after six months the executor of the estate will have begun distribution of assets to the beneficiaries and the statutory regulation states that no application may be made against a distributed estate.

As each claimant’s circumstances are different, it is important to consult a solicitor without delay for advice on whether you have standing to contest a will. If you have any questions on succession or probate matters, or any other legal issues, please get in touch with our contested wills team or phone our offices to make an appointment on 1300 038 223.