Contesting a will

Contesting wills is not an area of law in which I practise, however if you require some general advice or a recommendation of another lawyer who may be able to assist you, I am happy to have a brief discussion with you about your matter, at no cost to you.

If you have been left out of a loved one's will completely, or if you believe the gift left to you is not sufficient, you may wish to contest the will. This is called making a testator's family maintenance claim, or Part IV application.

There are three things to consider before you approach a lawyer:

1. Are you an "eligible person" to make a claim? The list is extensive, but it has been narrowed in recent years. You must fit into one of the following categories (this is from Section 90 of the Administration & Probate Act 1958):

• a person who was the spouse or domestic partner of the deceased at the time of the deceased's death;

• a child of the deceased, including a child adopted by the deceased who, at the time of the deceased's death, was—

  • • under the age of 18 years; or

    • a full-time student aged between 18 years and 25 years; or

    • a child with a disability;

• a stepchild of the deceased who, at the time of the deceased's death, was—

  • • under the age of 18 years; or

    • a full-time student aged between 18 years and 25 years; or

    • a stepchild with a disability;

• a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased who, at the time of the deceased's death, was—

  • • under the age of 18 years; or

    • a full-time student aged between 18 years and 25 years; or

    • a child with a disability;

• a former spouse or former domestic partner of the deceased if the person, at the time of the deceased's death—

  • • would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and

      • • has either—

          • • not taken those proceedings; or

            • commenced but not finalised those proceedings; and

        • is now prevented from taking or finalising those proceedings because of the death of the deceased;

• a child or stepchild of the deceased not referred to in paragraph (b) or (c);

• a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in paragraph (d);

• a registered caring partner of the deceased;

• a grandchild of the deceased;

• a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in paragraph (d) or (g)) if the child of the deceased dies within one year of the deceased's death;

• a person who, at the time of the deceased's death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member;

2. At the time of death, did the deceased have a moral duty to provide for your proper maintenance and support? This is a complicated question which takes into account all aspects of the relationship between you and the deceased.

3. Did the distribution of the deceased’s estate fail to make adequate provision for your proper maintenance and support? Note that notions of "equality" and "fairness" aren't mentioned here. You're not necessarily entitled to make a claim simply on the basis that another person received more than you.

Based on the above, if you believe you may be entitled to contest a will and you're not sure where to turn, please give me a call and I will be happy to recommend you to another lawyer in Ballarat who can assist you.