Who is Eligible to Contest a Will?

The threshold requirement for determining who is eligible for contesting a Will is eligibility. The Administration and Probate Act 1958 (Vic) sets out those who are eligible.

A claim for further provision from an estate is called a testators family maintenance claim (“TFM claim”).

Spouses

A spouse, including a de facto partner, is eligible to contest a Will.

A de facto relationship is defined as a relationship between two individuals who are not married or related and are living as a couple on a genuine domestic basis. In order to prove eligibility, a domestic partner must either have a child who is still a minor with the deceased when they pass away or have lived with them continuously for at least two years immediately before their death.

A former marital or de facto can also contest a will if they were about to start or had started proceedings in the Family Court against the deceased. This allows for any obligation that the deceased had towards a former spouse to be accounted for.

Children

A minor child of the deceased is eligible to contest a will in Victoria. Under estate law, a child includes biological and legally adopted children, and also stepchildren and “assumed” children of the deceased.

A Carer Can Contest A Will

A carer who provides unpaid support and care to a family member or friend who is frail, aged, disabled, or has a chronic condition, terminal illness or drug or alcohol dependency can contest a testator’s Will if they were in a registered caring relationship with the deceased for no recompense, and not their partner.

A Dependent Can Contest A Will

Grandchildren, including those who are adopted or related through blended families, can only contest a Will if they were also a dependent of the testator. Similarly, a member of the testator’s household can contest a Will if they were at least partly dependent on the testator for maintenance and support at the time of their death. To qualify as a dependent, the claimant must prove that the deceased supported them financially to meet their living expenses. For example, a person who lived rent-free with the deceased could argue that their living arrangements amounted to dependence.

Who Cannot Contest A Will In Victoria?

Those who are not automatically eligible under the new limitations include the deceased’s grandchildren, siblings, nieces and nephews, cousins, and housemates.

Time Limits To Contest A Will

Eligible persons can contest a will only within set time frames. In Victoria, a claimant must make a TFM claim within six months. After this point, a claimant may only make a claim if they can convince the court that there is reasonable justification for the delay. Exemptions are rare because after six months the executor will have begun distributing assets to the beneficiaries and under the statutory regulation no application may be made against a distributed estate.

As the circumstances are different in every claim, it is important to see a lawyer without delay for advice on whether you are entitled to contest a will.

If you require legal advice or representation in any legal matter, please don’t hesitate to get in touch with us on 9314 7320.