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How to challenge a will

16 Nov 2020

Making an application for further provision from a deceased estate, commonly known as ‘challenging a will’ is always a difficult choice to make, but sometimes a necessary one. If you feel that you have missed out on your fair share of an inheritance or feel that you have been inadequately provided for (or not provided for at all), you can apply for further provision from the estate.

Grounds for contesting a will in Victoria

While most people believe they have a legal right to choose what they wish to happen to their estate after their death, the deceased still has obligations to ensure that eligible persons are provided for. In Victoria, these eligible persons can make a claim for further provision if they believe that they have not been adequately provided for.

An ‘eligible person’ includes the following:

  • A person who was the spouse or domestic partner of the deceased
  • A child, including an adopted child or stepchild, under the age of 18 or a full-time student between 18-25 years or a child of any age with a disability
  • A former spouse or former domestic partner

As an ‘eligible person’, you can challenge a will after a grant of probate is made if you believe you are entitled to more from the deceased’s estate than what was provided.

In Victoria, you have six months from the date of the grant of probate to lodge your application for further provision.

The steps to take

After you have established that you are an eligible person who is entitled to make a claim, you will need to demonstrate to the Court that you have a financial need.

The Court will look at your assets, liabilities, income and expenses, and that of your partner. These will be compared with other competing claims from other beneficiaries. If successful, the amount you may be awarded will depend on your financial needs as well as the obligations that the deceased person had to provide for you, or promised to do so when they were alive. Any claim will also take into account the value of the estate and its ability to meet your claim.

You can also make an application for further provision from the estate if the deceased person died intestate (without a valid will), and believe that the amount you are to receive under the law of intestacy is not sufficient.

Getting help with your will

State Trustees can help you write your will. Our qualified will writers have decades of experience in estate planning. We can provide unbiased advice relating to your personal situation.

Contact us on 1300 138 672 for a confidential, obligation-free discussion about writing your will.

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