CHALLENGING A WILL

In Victoria, a will can be challenged if the Testator (will maker/deceased) has failed to provide adequate support and maintenance for any person who the will maker had a “moral” responsibility to make provision.

Who can challenge a will?

Prior to the introduction of the Wills Act 1997 ("the Act"), those who could challenge a deceased’s Will was limited to Widows, Widowers or children of the deceased. Since the introduction of this Act the categories of claimants has been expanded to include de facto spouses, wider family members and people whom the deceased had lived with or had contributed to financially.

How long do I have to challenge a will?

Anyone wishing to challenge a will must do so within 6 months of the date that Probate was granted by the Court. After the expiration of 6 months, the right to make application ceases unless the Court grants leave (gives permission) to challenge the will past the statutory 6 months. There are limited grounds (reasons) which the Court will consider appropriate to grant leave.

These grounds typically involve circumstances that prevented a person from making the challenge within the initial 6-month period. Some common grounds include:

The person may not have known about the deceased's passing or the existence of the will until after the 6-month period had expired.

The person making the challenge was absent from Victoria or was physically or mentally unable to take action within the statutory 6 months.

If someone else deliberately concealed information about the will or the estate, preventing the person from making their challenge on time.

If there was a genuine mistake or misunderstanding that led to the person missing the 6-month deadline.

The Court may consider any other valid and compelling reason that justifies granting leave for a late challenge.

It's important to note that obtaining leave from the Court is not guaranteed. The Court will carefully assess each case based on its individual circumstances. If a person believes they have a legitimate reason for making a late challenge, they should seek expert legal advice from Sgro & Associates to advise them on their chances of being granted leave to proceed with their challenge against the estate.

How to challenge a will?

Section 91 of the Act sets out the considerations which a Court will take into account when a person challenges a will. Section 91(4) of the Act states that the Court must assess whether or not the deceased had responsibility to make provision for a person and whether or not the distribution of the estate of the deceased person was effected by their will or the operation of the Act or both. The Court will have regard to the following:-

• Any family or other relationship between the deceased and the person challenging the will;

• Any obligations that the deceased had to the person challenging the will;

• The size and nature of the deceased’s estate;

• The financial resources and needs of the person challenging the will;

• Any physical, mental or intellectual disability of the person challenging the will;

• The age of the person challenging the will;

• Any contribution that the person challenging the will made to the deceased’s estate;

• Any benefits previously given by the deceased to the person challenging the will;

• Whether the deceased was maintaining (looking after) the person who is challenging the will prior to their death;

• The liability of any other person to maintain the person challenging the will;

• The character and conduct of the person challenging the will;

• Any other matters which the Court considers relevant.

The Act is only in place to ensure that the deceased's legal obligation to support the person challenging the will is observed by the distribution under the Will. It is not to be about fairness or any equity between claimants or to correct any wrongs which reward any member of the family against another.

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