Contested Wills and Probate: What Happens Before and After Probate Is Granted?

Before the grant: caveats and validity challenges

A grant of probate is the Supreme Court of Victoria's authentication of the will and of the executor's authority to administer the estate. Where there is a genuine concern about the validity of the will — for example on the basis of want of testamentary capacity, want of knowledge and approval, undue influence or fraud — a caveat may be lodged with the Probate Registry. A caveat prevents a grant issuing without notice to the caveator, and forces the proponent of the will to prove it in solemn form if the dispute cannot be resolved.

Caveats should not be lodged speculatively. They have procedural and costs consequences, and the Court expects an evidentiary foundation for the concern raised.

After the grant: the six-month claim window

The grant starts the clock for family provision claims under Part IV of the Administration and Probate Act 1958 (Vic). An eligible person has six months from the date of the grant to apply for a family provision order. The Court has a discretion to extend time, but the discretion is exercised cautiously and an out-of-time application risks the estate having been distributed.

Trustee advertisements and distribution risk

An executor or administrator may advertise under section 33 of the Trustee Act 1958 (Vic) to call in claims against the estate. Properly handled, the advertisement and the elapse of the statutory period provide some protection against later claims for the executor personally. It does not extinguish a claim under Part IV; it limits the personal exposure of the trustee who has distributed in accordance with the procedure.

As a matter of cautious practice, executors usually do not distribute during the six-month Part IV window, and obtain advice before doing so if there is any notice of a potential claim.

Revoking a grant

If a grant has already issued and a validity challenge later emerges, an application to revoke the grant may be necessary. Such applications have their own procedural and evidentiary burdens, and are more onerous than challenging the will before a grant has been made. This is one of the reasons why prospective challengers should obtain advice promptly when they become aware of the death.

Related material

For the broader framework, see our overview of contested wills and TFM claims and our administration practice on the probate and deceased estates page. For the planning side, see wills and estate planning.