When can a will be contested?
A person may contest a A document that sets out what a person wants to happen to their money and other property after they die. where:
- it is Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. the will was incorrectly executed or was tampered with;
- the willmaker did not have the mental The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. to make a will;
- the will was executed under pressure from others or the willmaker was incapable of making a will;
- insufficient provision has been made in the will for a spouse, domestic partner, children, or others to whom the willmaker has an obligation; or
- 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 the will
Where it is not clear what the will means, the The person named in a will as the one who must ensure that the deceased person’s intentions, as stated in the will, are carried out. or someone interested in the deceased’s All the property a person has, including real property and personal property. It is often used to describe property belonging to someone who has died, or the property of a bankrupt. may apply to the An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. to have it determine what the willmaker meant 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 primary meaning. Virtually no outside Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. may be called to interpret the will, unless the language is ambiguous (s 22 Wills A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1958 (Vic); s 36 Wills Act 1997 (Vic)).
Testator’s family maintenance
When there is no doubt that the A person who makes a will. 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.
Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. 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 (1) A standard set of working conditions, including pay rates, for a particular industry. (2) A court decision that a party receive compensation, such as an award of damages to compensate them for physical injuries. to an eligible applicant a portion of the deceased’s estate, if the deceased has an obligation to provide for someone 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 Money paid to a person to financially support them. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. Maintenance for a spouse is now less common, and must be applied for within 12 months of a divorce. It is usually covered in a final settlement of all property. (TFM) proceedings may be brought even where the deceased died Without a will. A person is said to have died intestate if they die without making a will. Their property is then distributed to the nearest relatives in a set order according to law..
When to apply for testator’s family maintenance
A TFM application must be made within six months of the grant of probate or A document that gives a person authority to manage the property of a person who has died without making a valid will that covers all their estate. See also intestate.. If you are contemplating a making a TFM application, you should file the forms 3-6A and B specified in the A&P Rules with the Probate Office, so you will be notified when a grant of probate or administration is made. You must still issue your proceeding within six months. The court may give an extension of time so long as the estate has not been completely administered (s 99(2), (3) A&P Act). An application can be made in either the County Court or the Supreme Court of Victoria, but cannot be brought in the Magistrates’ Court, or at VCAT.
For deaths before 20 July 1998
The category of people who may challenge the will is limited to the deceased’s widow or children. ‘Widow’ includes any former wife of the deceased who was at the time of death legally entitled to receive maintenance. ‘Children’ includes illegitimate children provided that the child’s parents were married to each other at conception or subsequently, or paternity was admitted by, or established against, the father during his lifetime (s 7 Status of Children Act 1974 (Vic)).
For deaths after 20 July 1998
The willmaker must provide for any person for who the deceased had a moral responsibility to provide financial support in his or her will. Therefore, de facto spouses and same-sex partners (now collectively called ‘domestic partners’) have the The right to appear in a court action and be heard. In general, a person cannot bring a case or have their say in a court about something that does not directly affect their interests. They must be able to show that they have sufficient interest in the case because, for example, of possible effects on their property or commercial activities. Also called locus standi. to seek provision under a will or intestacy if insufficient provision has been made for them at law. Section 35(2) of the Relationships Act 2008 (Vic) (‘Relationships Act’) (formerly s 275 Property Law Act 1958 (Vic)) and section 4AA of the Family Law Act 1975 (Cth) set out the various criteria that must be considered in deciding whether a person is a domestic partner. Other people, whether family members or not, could be eligible to apply if they can prove to the court the deceased had a legal moral obligation to provide financial support for them in their will.
For deaths after 1 January 2015
For deaths after the 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 people are (as defined in s 90A A&P Act):
- Spouses and domestic partners, children and step and assumed children under 25 years of age.
- Adult children, and assumed children and step- children (provision for whom is limited to the extent that they cannot provide for themselves).
- Registered caring partners, grandchildren; spouse or domestic partner of child of deceased testator and member of household of the deceased. These classes must be financially dependent upon the deceased at the time of death and the provision (if any) awarded must be proportionate to the degree of dependency on the deceased.
Criteria for a redistribution
Not all applicants who feel that the deceased has inadequately provided for them may receive an order from the court.
For deaths after 1 January 2015, under section 90A of the A&P Act, only an applicant who is an eligible person as defined in section 90 of the A&P Act is able to bring a claim. For deaths before 1 January 2015, the test applied is whether the deceased had a moral responsibility to make adequate provision for the applicant’s proper maintenance and support (and failed to do so) (s 91, 91A A&P Act). It is vital that an applicant also show an economic need for support that the deceased should have provided in their will. In the case of claims where the deceased died before 1 January 2015, close family members are more likely to have provision made for them than people who are not closely related to the deceased testator, or who are not related. A challenge will not be successful merely because the will was unfair or unjust in its distribution, if the applicant has received their legal due under the will.
Section 91(4) of the A&P Act (for deaths prior to 1 January 2015) and section 91A of the A&P Act (for deaths after 1 January 2015) set out the factors the courts have to consider in these applications. The provisions of Part IV of the A&P Act apply whether there is a will or not. In the case of deaths after 1 January 2015, the court is directed specifically to look to the deceased’s will and intentions and reasons for making the last will.
Principles applied by the court
Over the years courts have devised guidelines in determining what amounts to ‘adequate provision for proper maintenance and support’. The legislation also sets out various criteria (s 91(4), 91A A&P Act) that the court must consider in evaluating a proceeding brought under the relevant part.
Some of the important considerations are:
- the estate’s net value, i.e. its size after debts, funeral, testamentary and other liabilities have been deducted (if the estate is not big enough to be redistributed, the action cannot succeed);
- the applicant’s age, sex and health;
- whether the applicant received any gift, transfer or other provision from the deceased during their life (pre-2015: s 91(4)(l); after 2015: s 91A(2)(k));
- how close the relationship was between the applicant and the deceased (pre-2015: s 91(4)(e); after 2015: s 91A(2)(a));
- the financial resources of the applicant and other beneficiaries or claimants – an applicant will only be entitled to provision if an economic need for provision can be shown;
- the character and conduct of the applicant;
- the extent to which, and basis upon which, the deceased may have maintained the applicant;
- the applicant’s contribution to building up the estate or contribution to the welfare of the deceased and their family;
- the obligations and responsibilities of the deceased to the applicant and other persons;
- any prior benefits given to the applicant.
The court has power to refuse the application if, in its opinion, the applicant’s character and conduct disentitles them from benefiting under the provisions of Part IV (pre-2015: s 91(4)(o); after 2015: s 91A(2)(k)). Grounds for refusing relief might include violence towards the willmaker, dishonestly dealing with the willmaker, or serious abandonment of obligations to the willmaker.
If the court decides to alter the will to make provision for an applicant under Part IV, the provision that the court makes is the minimum necessary to rectify the deceased’s breech of their legal obligation to make proper and adequate provision for the applicant in their will. The distribution of the balance of the estate remains as set out in the will as modified by the court order. The order acts as a codicil to the will.