Executors and beneficiaries in Victoria need to be aware that the deceased does not necessarily have the final say as to how their estate will be dealt with after their death.
Challenging wills in Victoria can take place in the following situations:
A. There are problems with the legal formalities of the will:
- The will has not been properly executed.
- The meaning of the will is unclear.
- There is a mistake in the will.
The Court can save the will if the defect is a “clerical error” or if the will still reflects the wishes of the deceased. Otherwise, the Court may declare the will to be invalid.
Applications challenging wills in Victoria must be made within 6 months of probate, although extensions are possible.
B. The will doesn’t properly reflect the deceased’s wishes because:
- The deceased was not of sound mind, memory and understanding at the time of making the will .
- The deceased was subject to undue influence at the time of making the will possibly by physical violence, verbal threats or any coercion overpowering the deceased’s wishes.
- There has been a fraud including a forged signature on a will.
If proved, the court will set aside the will.
Where a will is set aside under A or B above, then an earlier valid will would apply or there would be an intestacy meaning that the assets of the estate would be distributed not as per the will but, instead, with the administration provisions of the Administration and Probate Act (Vic) 1958 (“Act”).
C. The right of an “eligible applicant” to make a claim for additional provision under the will (known as a testator’s family maintenance claim or a Part IV claim) under the Act.
Eligible applicants most commonly include the deceased’s spouse or partner at the date of death; children (including step-children); grandchildren; a registered caring partner; or a member of the deceased’s household. A full list of eligible persons is detailed in our earlier blog dated 9 February 2016. The Act also lists the factors the Court may consider in deciding if adequate provision has been made to an applicant including the size of the estate; the financial resources and needs of the applicant; the age of the applicant; any contribution made by the applicant to welfare of the deceased; and any benefits the applicant previously received from the deceased.
Testator’s family maintenance claims must be made within 6 months of probate but the time may be extended in appropriate circumstances. The time limit is very important and any decision to get advice about challenging wills must be made quickly.
If you worried about a will or considering challenging a will in Victoria, please call Hendersons Legal on 03 9629 2211 to speak to an experienced solicitor for practical legal advice on these matters.
This content is intended as commentary and should not be construed as legal advice.
For more information call David Henderson on 03 9629 2211.
