Contesting a Will in Victoria

Contesting a will to help secure your share

Contesting a will is an important decision. But if you didn't inherit what you were expecting, or have concerns about whether a will is valid, you may need to protect your interests.

Contesting a will is a legal action. It starts with an application in the Supreme Court of Victoria, seeking orders to increase your share or declare a will invalid.

This legal process can be overwhelming for many people, mainly because the laws are technical, and there's much evidence to consider. However, help is available. The first and best step is to seek the advice of an experienced lawyer.

Learn more

What does it mean to contest a will in Victoria?

Contesting a will is the same as challenging a will.

It means that a person decides to make a legal claim against the estate of someone who has died (the testator) because they believe they should have either:

Been included as a beneficiary in the will; or
Received a greater share of the estate under the will

This type of claim is known as a family provision claim.

A person can also contest a will if they believe the whole will, or part of it, is invalid. For example, they may claim that:

The testator had no capacity to make the will
Someone forced the testator to make the will in a certain way
The will was forged or fraudulent
The will wasn't made correctly

For more information, see our Wills and Estate Planning page.

You must be eligible to contest a will in Victoria, meaning that you must meet specific requirements under Victorian law.

Glossary

Contesting a will is the same as challenging a will.

Our services for contesting wills

Contesting a will is a legal process that may involve:

Checking the will

Analysing the law

Interviewing witnesses

Locating evidence to support your claim

Filing a claim in the Supreme Court

Negotiations and legal argument

Depending on the circumstances, the process is often complex. Therefore, we recommend seeking legal advice as soon as possible.

You have six months from the grant of probate to file a legal action to contest a will, so you must act as soon as possible.

Frequently asked questions about contesting a will in Victoria

Who can contest a will?

A person may be eligible to contest a will as a family provision claim if they can prove that the testator had an obligation to support them. This obligation is often referred to as proper maintenance and support. Lawyers sometimes refer to a family provision claim as a Part IV claim, or a Part IV application.

People who may be eligible to make this type of claim include the testator's:

Spouse or domestic partner
A child of the testator (including an adopted child)
A stepchild of the testator
A former spouse of the testator
A grandchild
Another member of the testator's household

A person who isn't on this list may be eligible in some circumstances. However, eligible people must also meet other criteria before making a family maintenance claim.

Under what circumstances can a person contest a will?

To contest a will, an eligible person must also show that the testator owed them a duty to provide proper maintenance and support. They must be able to show evidence to demonstrate this, for example, health issues, current and future needs, and how capable they are of supporting themselves.

This is a complex balancing process, and every situation is different. In other words, the Court will consider every application on a case-by-case basis. So it's critical to seek expert legal advice as soon as you become aware of a claim, whether you're a potential beneficiary, claimant, or executor.

Jack's inheritance shock

Rachel recently passed away, aged 75. Her estate is worth around $4 million. Rachel had three adult children, Samuel, Fiona, and Jack, with Fiona being the estate's executor. In Rachel's will, she left one-third of her estate to Samuel, one-third to Fiona, and one-third to her favourite charity, Save the Birds.

Rachel left nothing to Jack.

Jack is upset and stressed because Rachel had always told him that her estate would be divided evenly between her three children. Jack enjoyed a close relationship with his mother. He visited her several times a week, did her grocery shopping, took her to appointments, and did other jobs to help Rachel continue to live in her own home.

While Fiona and Samuel are already financially secure with good jobs and valuable assets, Jack relies on a disability support pension. He lives in an on-site caravan in a nearby caravan park and is worried about the increasing cost of running his car. He is also concerned that Rachel may have been pressured to change her will.

Jack's friend encourages him to see a lawyer for advice about making a family maintenance claim for a share of Rachel's estate, and to discuss the possibility that the will is invalid.

What can I do to prevent my will from being contested?

In Victorian law and throughout Australia, there is a legal principle known as testamentary freedom. It says that testators should have the freedom to decide how their property should be divided and distributed after they die.

However, this freedom needs to be balanced against:

Legal requirements for making a will
Laws that protect wills and testators from fraud or coercion
Laws that allow potential beneficiaries to claim a share of a deceased estate

It means that you can leave your property to anyone you choose, but under Victorian laws, in some circumstances, your will may be contested. It may drain significant sums of money from your estate due to legal costs, and the results may not be what you wanted or intended. For these reasons, you need to carefully consider who will inherit your estate and how much they will receive.

When making a will, it's critical to:

Carefully consider who will be your beneficiaries; and
Consider whether there's a risk of a family provision claim

Getting specialist legal advice is effective in reducing the risk of a claim. For example, if it's necessary to leave someone out of your will, a lawyer can include safeguards to help defend a legal challenge.

What can I do if I was left out of a will or believe my share of an estate should have been more?

If you have been left out of a will or believe your share of a deceased estate should have been more, you have six months from the grant of probate to file a legal action contesting the will.

You must act as soon as possible because, after six months, the estate can be distributed to the beneficiaries. If this happens, the Supreme Court is unlikely to give you an extension of time to file your legal claim.

As soon as you know of a potential claim, we recommend you urgently seek our legal advice. We will notify the executor of the possibility of the claim. Then we'll advise and guide you through the entire process, including:

Gathering evidence, including a copy of the will
Considering your lifestyle, medical and financial needs
Considering any other factors
Giving you advice
Preparing your claim
Negotiating with the executor
Providing ongoing legal support as required

Get in touch to learn more about contesting a will.

What can I do if I believe a will is invalid?

A will may be invalid for many reasons, including:

The testator had no capacity to make the will
The testator was forced to make the will in a certain way
The will is fraudulent
The will wasn't made correctly
There was an event that made the will invalid. For example, the testator got married after making a will

Some of the most common reasons for questioning the validity of a will include a lack of capacity and coercion, particularly for vulnerable people. It's why Victorian laws require the Supreme Court to scrutinise a will and assess whether it's valid as part of the probate process.

We recommend that you seek urgent legal advice if you're concerned about a will's validity.

If there is a problem, we may be able to apply to the Supreme Court to declare the will invalid. If this happens, the deceased estate may be considered intestate or it will revert back to the previous will. There are special laws that dictate what occurs in those circumstances.

It's also possible for part of a will to be declared invalid. It may happen where, for example, the testator gives a specific gift to someone, but the person or item isn't identified correctly. It can lead to uncertainty about the testator's intentions. If you're concerned about this, we recommend that you seek our legal advice as soon as possible.

John's problematic will

John, who was Stefan's husband of five years, recently passed away. John had made his will before he met Stefan but didn't update it after they married.

John's will named his two sisters as the beneficiaries but did not mention Stefan. Although Stefan had a job and a stable income, his earning capacity was much lower than John's. Stefan had relied on John to make mortgage repayments and payments of other items such as bills, insurance and car expenses.

John always got along well with his two sisters but didn't see them often. So the sisters were surprised to learn that they would inherit John's estate. They had assumed that Stefan would inherit the whole estate.

Stefan decided to get legal advice. He found out that their lawful marriage made John's will invalid. Stefan's lawyer discussed how to apply for a Supreme Court order to declare the will invalid, and how John's estate would be distributed if that happened. Stefan was glad to have sought legal advice and to have the sisters' support to sort out the issues with a minimum of fuss.

Don't leave things to chance

Get in touch