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Published: 12 September 2019
Author: Nadine Scarlett

Feeling left out of a Will? Here’s what you need to know about legally challenging a Will

If you feel you have been unfairly left out of a Will and are thinking of a legal challenge, here’s what you need to know.

When a person makes a Will, they have the freedom to leave their assets to whomever they choose, whether it be a relative, a charity or a friend. However, from a legal perspective, the Will maker may have a moral obligation to make adequate provision under their Will for certain people in their life.

In this article, I explore who is eligible to bring a claim against the Estate and the legal limitations to challenging a Will.

What part of the law is involved in a Will challenge?

The legislative framework for bringing a claim against an Estate is set out in Part IV of the Administration and Probate Act 1958 (Vic) (‘the Act’). Consequently, in Victoria claims against the Estate are commonly known as ‘Part IV applications’.

Broadly speaking, Part IV of the Act sets out:

  • who can bring a claim; 
  • the factors the court must or may consider in determining such a claim; and 
  • the timeframes for bringing a claim.

What is a Part IV application? 

In many ways, Part IV of the Act seeks to remedy an unjust Will or an unjust operation of intestacy laws.

A Part IV application is an application made for an order of the Court for proper or further provision out of the Estate. These orders are known as ‘Family Provision Orders’.

If you have been excluded from a Will or if you feel you have not been adequately provided for under the Will, you may be able to bring a Part IV application to receive adequate provision from the Estate for your proper maintenance and support.

In accordance with section 91 of the Act, the Court cannot make a Family Provision Order unless it is satisfied that:

  1. the applicant is an eligible person as defined under section 90 of the Act;
  2. the deceased, at the time of death, had a moral duty to provide for the applicant’s proper maintenance and support; and
  3. that the distribution of the Estate fails to make adequate provision for the applicant’s proper maintenance and support.

Who can challenge a Will?

Section 90 of the Act defines the term ‘eligible person’. Only a person who meets this definition will qualify to bring a claim against the Estate.

The applicant must demonstrate that the deceased had a moral duty to provide for their proper maintenance and support, and that the distribution of the Estate fails to meet that obligation.  

Generally speaking, a person eligible to bring a claim will include:

  • a spouse of the deceased including domestic partners
  • a natural or adopted child of the deceased
  • a person who believed themselves to be a child of the deceased and was treated by the deceased as such
  • a grandchild of the deceased who was financially dependent on the deceased as at the date of death
  • a member of the deceased’s household who was financially dependent on the deceased as at the date of death

The reason the above-listed persons will generally qualify as an eligible person for the purposes of a Part IV application is due to a presumption at law that a moral duty will likely exist.

The above list serves as a general guide however, it should be noted that the definition of an ‘eligible person’ under section 90 is not confined to the above categories alone.

Even if you don’t fit within the above categories, it may be worth obtaining legal advice on the prospects of a successful claim if you think you have not been adequately provided for under the Will.

Demonstrating you are in financial need

It is crucial to note that fitting the eligibility criteria under Section 90 is not in and of itself enough. To bring a successful claim, you must also be able to show you are in financial need. The Court will only ever make an order for provision to the extent necessary to meet those needs. The greater your need the stronger your claim and if you are able to provide for yourself your prospects of success will be limited.

What must the Court consider when determining a Will challenge?

When giving advice to Will makers, we’re commonly asked “what’s the point in making a Will if it can be challenged?”.

As prefaced above, each Will maker has the testamentary freedom to write their Will and distribute their Estate however they see fit. Accordingly, when determining whether to make a Family Provision Order, the Court will take in to account this testamentary freedom of the Will maker.

In doing so, the Court must consider the terms of the Will, any evidence of the deceased’s reasons for the dispositions contained in their Will, and any evidence of the deceased’s intentions in relation to providing for the applicant.

As an example, the Will maker may have left a letter behind setting out the reasons for their decision to distribute their Estate a certain way. This may be the case where a parent has already provided one child with significant financial assistance during their lifetime, or where a child has been estranged from the Will maker and they want the executor to know the reasons behind their decision to exclude the child.

Other key factors the Court may consider

Section 91(A)(2) expands the discretion of the Court and sets out a number of other factors the Court may consider when determining whether to make a Family Provision Order and if so, the quantum of that provision.

The key factors the Court may have regard to include: 

  • any family or other relationship between the deceased and the applicant, including the nature of the relationship and, if relevant, the length of the relationship;
  • any obligations or responsibilities of the deceased to the applicant, to any other person eligible to bring a Part IV claim, and to the beneficiaries of the Estate;
  • the size and nature of the Estate and any debts the Estate is liable to repay;
  • the financial resources, including the earning capacity and financial needs of the applicant, of any other person eligible to bring a Part IV claim, and of the beneficiaries of the Estate;
  • any physical, mental or intellectual disability of any eligible person or any beneficiary of the Estate;
  • the age of the applicant;
  • any contribution the applicant may have made to the building up of the Estate or the welfare of the deceased or of the deceased’s family;
  • any benefits previously given by the deceased to any eligible person or to any beneficiary (*this can include amounts given as early inheritance or as financial assistance);
  • whether the applicant was being financially maintained by the deceased;
  • whether any other person is liable to maintain the applicant (e.g. a spouse of the applicant);
  • the character and conduct of the applicant or any other person; and
  • the effects a Family Provision Order would have on the amounts received from the deceased's estate by other beneficiaries.

In addition to the above factors, section 91(A)(2)(m) empowers the Court to take into account “any other matter the Court considers relevant”. The discretion of the Court in this jurisdiction is broad, and justifiably so. Relationships are complex and family history can be complicated. For these reasons, the circumstances must be analysed holistically.

What to do if you have been excluded from the Will

First, you must seek the advice of an Estates Litigation solicitor, sooner rather than later.

Timing is crucial in Part IV claims.

Strictly speaking, a Part IV claim must be brought within six months from the date of the Grant of Representation. This means six months from the date the Will is probated or from the date Letters of Administration is granted.

While there are exceptions to this rule, once the six months have passed it is difficult to obtain the consent of the Court to bring an application out of time. Further, there will be greater risk that the assets of the Estate have already been distributed and may therefore no longer be available to be claimed. For these reasons, it’s important to obtain legal advice on the strength of your claim as soon as possible.

Call 1300 366 441 or find us at an office near you for advice on challenging a Will.

Categories Wills, Estates, Disputes

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