Have you been left out of a will, or left far less than you expected? In Victoria, you may be able to contest the will by making a family provision claim. This guide explains in plain English who can make a claim, what the court looks at, and the strict time limits that apply.
What is a family provision claim?
In Australia, people are generally free to leave their property to whoever they choose. But that freedom has limits. If someone dies without making adequate provision for a person they had a responsibility to look after, the court can step in and order that more of the estate goes to that person.
This is called a family provision claim, and it is the most common way of contesting a will. It applies whether the person left a will or died without one, which is known as dying intestate. In Victoria, these claims are made under Part IV of the Administration and Probate Act 1958.
A family provision claim is not about proving that the will is invalid. The will stays in place. The question is whether it leaves an eligible person without enough for their proper maintenance and support.
Who can contest a will in Victoria?
For deaths from 1 January 2015, only certain people are eligible to make a family provision claim in Victoria. They include the deceased's current spouse or domestic partner, some former spouses or partners, children and stepchildren. A person who, for a substantial time, believed the deceased was their parent and was treated as their child can also claim. The law calls this an "assumed child".
Some other people can claim, but only if they were wholly or partly dependent on the deceased when the deceased died. This group includes grandchildren, registered caring partners and members of the deceased's household. In those cases, any award must be in proportion to how dependent the person was.
Age and circumstances matter for children. A child who is under 18, a full-time student under 25, or living with a disability does not need to prove anything more. An independent adult child, however, must show the extent to which they cannot reasonably support themselves.
Stepchildren can also be eligible where the relationship came from a domestic relationship rather than a marriage. The Victorian Court of Appeal has confirmed that a stepchild includes the child of a deceased's domestic partner, and that the relationship does not end just because the stepchild's parent dies first.
How does the court decide a family provision claim?
The court asks two questions. First, has the person been left without adequate provision for their proper maintenance and support? Second, if so, what provision should be made for them out of the estate?
To answer these questions, the court puts itself in the shoes of a "wise and just" will-maker, judged by today's community standards. It asks what that person, knowing all the circumstances, would have thought it their moral duty to provide.
In Victoria, the court must consider a range of factors set out in the legislation. These include the nature and length of the relationship, the size of the estate and its debts, and the financial needs and resources of everyone involved. The court also looks at any disability, the claimant's age, and any contribution they made to building up the estate or caring for the deceased. Gifts the deceased made during their life, and the character and conduct of the claimant, are relevant too. The court can also take into account any evidence of the deceased's reasons for the will, whether written down or not.
It is important to understand what a family provision claim is not. The court does not simply divide the estate equally, and there is no presumption that all children should receive the same. The purpose is to meet a person's genuine needs, not to make the will "fair" or to right old family wrongs.
How long do you have to contest a will in Victoria?
Time limits are strict, so it is important to act quickly. In Victoria, a family provision claim must generally be filed within six months of the grant of probate or letters of administration. The court can extend that time in some circumstances, but you should never rely on an extension. Once the estate has been distributed, it can be much harder to recover anything.
Most claims do not end up in a courtroom. After a claim is filed, the parties are usually required to attend mediation, and the majority of matters settle there. Getting advice early gives you the best chance of resolving things sensibly, and helps keep legal costs down for everyone.
Common situations we see
Estranged children
Many people assume that if they had fallen out with a parent, they have no claim. That isn't necessarily so. Courts recognise that family rifts happen, that fault often lies on both sides, and that a wise and just parent is expected to show a fair degree of understanding and forgiveness. Estrangement can reduce what a claimant receives, and serious misconduct can justify leaving someone out entirely. But a falling-out on its own doesn't automatically end a parent's duty to provide.
Family farms and businesses
In regional Victoria, estates often include a family farm or business. Traditionally, farms were left to the son or sons who worked them, with little for other children. Courts no longer accept that a will-maker can treat children differently simply because of their sex. At the same time, they do give weight to a child who worked on the farm for years at low wages in reliance on a promise that it would one day be theirs. Where promises like that were made, there may be other legal claims available too.
Second marriages and blended families
Blended families are a common source of claims. A surviving spouse, children from a first marriage and stepchildren may all have competing needs. The court weighs each person's circumstances against the size of the estate. Where the estate is modest, it may be difficult to provide for everyone.
Making a will? How to reduce the risk of a claim
No will can be made completely claim-proof, but good planning helps. If you intend to leave someone out, or give them less than others, it is worth recording your reasons clearly. The court can consider that evidence, although it is not bound by it.
Think honestly about who depends on you, and who might reasonably expect to be provided for. Review your will whenever your circumstances change, such as after a marriage, separation, new relationship or the birth of a grandchild. And get legal advice when you make your will, so it reflects your wishes in a way that is most likely to stand.
If you are an executor and a claim is made against the estate, you should not distribute the estate until it is resolved, and you should get advice promptly.
Frequently asked questions
Can I contest a will if I wasn't mentioned in it?
Yes, if you are an eligible person and the deceased had a responsibility to provide for you. Being left out entirely is one of the most common reasons people make a family provision claim.
Can an adult child contest a will?
Yes. An independent adult child is eligible, but must show the extent to which they cannot reasonably provide for their own maintenance and support.
Can I contest a will if there was no will?
Yes. A family provision claim can be made whether the deceased left a will or died without one.
What is the time limit to contest a will in Victoria?
Generally six months from the grant of probate or letters of administration. Get advice as soon as possible.
Wills and estates lawyers in Bendigo and regional Victoria
O'Haire Legal helps clients in Bendigo, Robinvale and across Victoria with contesting a will, defending family provision claims, and preparing wills that reflect your wishes. Whether you have been left out of a will, are an executor facing a claim, or want to plan ahead, we can explain your options in plain English.
To talk about your situation, call us on (03) 7064 0341 or email home@ohairelegal.com.au.
This article is general information only and is not legal advice. Everyone's situation is different, so please get advice about your own circumstances before acting.
