Can a Will Be Contested in Victoria?

Two different ways a will can be contested

A family provision claim does not say the will is invalid. It says that the deceased had a moral duty to make adequate provision for the proper maintenance and support of the applicant, and that the will (or the intestacy rules) failed to do so. A challenge to validity, by contrast, asks the Court to refuse or revoke a grant of probate on the basis that the document is not the true last will of the deceased.

The two kinds of claim proceed on different evidence and different principles. Hanlons advises on both, and on related matters such as applications to remove an executor or for judicial directions in the administration of an estate. For an overview of our practice, see our contested wills and TFM claims page.

Who can contest a will in Victoria?

Eligibility to apply for a family provision order is defined by section 90 of the Administration and Probate Act 1958 (Vic). Categories of eligible person include:

• the spouse or domestic partner at the time of death;
• a former spouse or former domestic partner who could have brought proceedings under the Family Law Act 1975 (Cth) but for the deceased's death;
• children of the deceased, with distinct treatment for those under 18, full-time students aged 18 to 25 and children with a disability;
• adult children, assessed against the further statutory criteria in section 91A;
• stepchildren, grandchildren and registered caring partners in defined circumstances;
• members of the household who were, or had been and were likely to again be, wholly or partly dependent on the deceased.

Time limits

A family provision application must be made within six months of the date of the grant of probate or letters of administration. The Court has a discretion to extend time, but the discretion is not exercised lightly and an out-of-time application risks the estate having already been distributed. Where the validity of the will itself is in issue, a caveat against a grant should be lodged with the Probate Registry before the grant issues.

What the Court considers

Section 91A directs the Court to have regard to a range of matters including the nature and length of the relationship with the deceased, the size and nature of the estate, the financial resources and needs of the applicant and the beneficiaries, any physical, mental or intellectual disability, any contribution made by the applicant to the deceased's property or welfare, and any benefits previously given by the deceased to the applicant or to a beneficiary.

Estate size operates as a real constraint. Where an estate is modest, the Court is conscious that any order in favour of one party reduces the entitlement of another. For background on the administration process, see our probate and deceased estates page; for testamentary planning, see wills and estate planning.

Frequently asked questions