The Law Handbook 2024

Chapter 9.4: Estates 909 Contesting a will When can a will be contested? A person may contest a will where: 1 it is alleged the will was incorrectly executed, tampered with, or there is a later effective will; 2 the willmaker did not have the mental capacity to make a will, or did not know or approve of the contents of the will when it was made; 3 the will was executed under pressure or coercion from others; 4 the will appears to have been executed in circumstances that are so suspicious that the court cannot safely grant probate without further investigation of the circumstances surrounding the execution of the will; 5 insufficient provision has been made in the will for the proper maintenance and support of an eligible person (usually a spouse, domestic partner, children, or others to whom the willmaker had an obligation to provide) within the meaning of Part IV of the A&P Act; 6 the will has been incorrectly administered. Before any challenge to a will is contemplated, legal advice should be obtained as the procedures are complicated, expensive and time consuming. Interpreting a will Where it is not clear what the will means, the executor or someone interested in the deceased’s estate may apply to the court under order 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to have it determine what the willmaker meant in the will. The task of a court is to give effect to the willmaker’s intention through examination of the words used in the will. The court’s power is limited to interpreting the actual words of the will in the context in which they appear, according to their ordinary meaning. Virtually no outside evidence may be called to interpret the will, unless the language is meaningless or ambiguous (s 22 Wills Act 1958 (Vic); s 36 Wills Act 1997 (Vic)). Testator’s family maintenance When the testator was legally capable of making a will, and the will is the deceased’s last will, and the will is clear and unambiguous, there is little opportunity to contest its substance. The Supreme Court has very limited power to alter wills. As a general principle, a person can give their estate to anyone. This was considered to be unjust when the willmaker’s close family suffered hardship as a result of the deceased giving money elsewhere, rather than to support their immediate family. Legislation was passed to change the situation. This is contained in Part IV of the A&P Act. The object of the legislation is to allow the court to award to an eligible applicant a portion of the deceased’s estate, if the deceased had an obligation to provide for the applicant and has made no, or inadequate, provision for the applicant in the will in the light of the applicant’s financial situation. Testator’s family maintenance ( TFM ) proceedings may be brought even where the deceased died intestate. When to apply for testator’s family maintenance A TFM application must be made within six months of the grant of probate or letters of administration. If you are contemplating making a TFM application, you should immediately seek legal advice. To see if a grant of probate or administration has been made, you can check the Supreme Court’s probate records through the court’s website. The court may extend time to make a TFM application if the estate has not been completely distributed (s 99(2), (3) A&P Act). A TFM application can be made in either the County Court or the Supreme Court of Victoria, but cannot be brought in the Magistrates’ Court, or VCAT. Both courts have comprehensive practice notes which set out the TFM procedures. For the Supreme Court see www.supremecourt.vic.gov.au/areas/ legal-resources/practice-notes/sc-cl-7-testators- family-maintenance-list-second-revision and for the County Court see www.countycourt.vic.gov.au/ going-court/common-law-division/common-law- division-lists/family-property-list Applicants For deaths after 1 January 2015 For deaths after 1 January 2015, only people who are ‘eligible persons’, as defined by section 90A of the A&P Act, can bring a claim. Broadly, the three categories of eligible persons are (as defined in s 90A A&P Act):