Will Contests and Estate Disputes

A family provision claim allows an eligible person to seek provision or further provision from an estate for their proper maintenance and support. It is also known as a Testator’s Family Maintenance claim or Part IV claim. Family provision claims are governed by Part IV of the Administration and Probate Act 1958 (Vic).

A claim can arise whether the deceased left a Will or died without one. Being left out of a Will or disappointed with an inheritance does not, by itself, establish a successful claim.

We can assess your eligibility, the merits of a potential claim and the options available to you.

Eligible people can include a spouse or domestic partner, children and stepchildren. Certain former partners, grandchildren, household members and other people may also qualify, subject to specific legal conditions.

Eligibility does not automatically mean a claim will succeed. Your relationship with the deceased, financial circumstances and needs, and the circumstances of the estate are relevant to assessing a potential claim.

A family provision application must generally be made within six months of the Grant of Probate or Letters of Administration. The period runs from the grant, rather than the date of death.

The Court may allow an extension, but an extension application must be made before the estate’s final distribution. An extension is not automatic.

Seek advice promptly, even if settlement discussions are underway. Different rules apply to challenges concerning a Will’s validity.

The first step is to review the Will, available estate information, your circumstances and any relevant deadlines. We can then explain the strengths and risks of your potential claim and the steps needed to protect your position.

Useful information for an initial appointment includes:

• the Will and any Grant of Probate or Letters of Administration, if available;
• details of your relationship with the deceased;
• information about your income, assets, debts and financial needs;
• relevant health or care needs;
• details of support you received from, or provided to, the deceased; and
• correspondence about the estate or dispute.

You do not need to have every document before seeking advice. We can help identify what further information is required.

A Will contest may be resolved through negotiation or mediation without proceeding to a trial. Settlement discussions can take place before or after Court proceedings begin.

Mediation allows the parties to explore a resolution with the assistance of an independent mediator. We can advise on settlement proposals, represent you in negotiations and mediation, and assist with Court proceedings where necessary.

The Supreme Court’s Testators Family Maintenance guidance explains the process for family provision proceedings.

In some circumstances, beneficiaries may agree to distribute an estate differently from the Will. A Deed of Family Arrangement may be appropriate, depending on who is affected and the legal and tax implications.

Legal costs depend on the work required, the complexity of the dispute and how it is resolved. Payment of costs may be addressed in a settlement or determined by the Court.

You should not assume that all your legal costs will be paid from the estate. We can explain likely costs and potential exposure to another party’s costs when assessing your options.

Executors and beneficiaries responding to a claim have different responsibilities and interests.

Executors need advice about the appropriate response on behalf of the estate. Beneficiaries may need advice about how the claim could affect their entitlement and whether separate representation is appropriate.

iWills Legal can assist with:

• assessing the claim and advising on a response;
• preparing relevant evidence;
• negotiating with the claimant’s representatives;
• representation at mediation; and
• Court proceedings where a settlement cannot be reached.

A validity challenge concerns whether a Will should be legally recognised. This differs from a family provision claim, which seeks provision or further provision from the estate.

Concerns about validity may include:

• whether the Will maker had testamentary capacity;
• whether the Will was properly signed and witnessed;
• whether undue influence affected the Will maker’s decisions; or
• whether suspicious circumstances raise questions about the Will’s preparation or the Will maker’s knowledge and approval.

Victoria Legal Aid provides an overview of challenges to a Will.

These matters require careful assessment and evidence. Suspicion alone does not establish that a Will is invalid.

Seek advice promptly, particularly if an application for probate is underway or a grant has already been made. We can also advise on concerns about capacity or undue influence while a person is living.

Unexpected issues can arise during estate administration, even where no one is contesting or challenging a Will.

We advise executors and beneficiaries on matters involving:

• disagreements about the administration or distribution of assets;
• executor’s commission;
• testamentary trusts;
• life interests and rights to reside in property;
• concerns about the management or upkeep of estate property;
• beneficiaries who are minors or have died; and
• executors or beneficiaries living overseas.

We can explain your responsibilities, clarify your legal position and advise on options for addressing the issue.

Superannuation does not automatically form part of a deceased estate. Disputes about who receives a death benefit follow a different process from a Will contest.

iWills Legal can assist with:

• assessing whether you may be entitled to a death benefit;
• preparing a claim or responding to a proposed distribution;
• disputing a superannuation fund’s decision; and
• responding to a complaint about a benefit allocated to you.

We have experience dealing with superannuation funds and, where appropriate, complaints to the Australian Financial Complaints Authority (AFCA). Seek advice promptly, as time limits may apply.