Contesting a Will in Victoria

Two distinct types of will challenge

People often use “contesting a will” loosely. In Victoria it covers two different legal claims, each with its own requirements:

1. Family Provision claim (inadequate provision)

Under section 90 of the Administration and Probate Act 1958 (Vic), an “eligible person” can apply to the Supreme Court of Victoria for a larger share of a deceased estate if the deceased had a moral duty to provide for them and the will (or intestacy) failed to do so.

Who is eligible? The Act limits eligibility to a defined list: spouses, domestic partners, children (including step-children and grandchildren in limited cases), registered carers, and other categories who can demonstrate they were wholly or partly dependent on the deceased.

Time limits. The claim must be filed within 6 months of the grant of probate or letters of administration. Extensions are difficult to obtain and are not granted simply because the applicant only recently learned of the will.

What the Court considers. Age, health, financial circumstances, relationship with the deceased, the size of the estate, competing claims, and the deceased's reasons for the disposition expressed in the will.

2. Will-validity challenge

A separate ground is to challenge the will itself as invalid. The two main grounds are:

• Lack of testamentary capacity. The deceased lacked the mental capacity to understand the nature of the act of making a will, the extent of their property, the people they ought reasonably to provide for, and the effect of the will's provisions. The classic case is dementia at the time of execution.
• Undue influence or duress. The will reflects the wishes of someone other than the testator because of pressure, coercion, or control over the testator at the time of making the will.

A successful validity challenge can lead to the will being set aside; in which case an earlier valid will, or the intestacy rules, will govern the estate.

Defending an estate from a claim

We also act for executors defending estates against Family Provision claims and validity challenges. The defence position depends heavily on the deceased's documented reasons for the disposition, evidence of testamentary capacity at the relevant time (medical records, contemporaneous notes from the drafting solicitor), and the strength of the applicant's eligibility.

Mediation is usually mandatory

The Supreme Court of Victoria requires the parties to a Family Provision claim to attempt mediation before trial. The vast majority of contested-estate matters resolve at or shortly after mediation. We prepare every matter from day one with mediation strategy in mind, while remaining ready to run a trial if needed.

Next step

For a confidential conversation about a Victorian estate dispute — whether you are considering a claim or defending an estate — see our wills & estates services, meet our team, or contact us directly.