Contesting a Will

When a loved one passes away, their Will serves as a crucial document that outlines their last wishes and the distribution of their assets. However, there are instances where the validity or fairness of a Will may come into question.

Contesting a Will refers to the legal process initiated to challenge the legitimacy of a Will or making a claim on a deceased’s estate. This action is typically taken when someone believes the Will does not accurately represent the true intentions of the deceased or that it was executed under improper circumstances, or that they have been unfairly treated in the Will. This process is complex, fraught with both legal intricacies and emotional challenges.

At Goldsmiths Lawyers, we understand the intricacies of succession law in Victoria and provide clear, sensitive, and expert guidance through each step of contesting a Will or making a claim on an estate. Our client-centric approach means we will always strive to protect your interests in guiding you through each step of the process while respecting the sensitive nature of the circumstances present.

What Does Contesting a Will Involve?

In Victoria, contesting a Will is a multifaceted process involving two main areas of interest; the validity of the Will and the contents of the Will.

Challenging the Validity of the Will

Challenging the validity of a Will pertains to its legal creation and execution. This type of contest can arise due to various circumstances, including:

Testamentary Capacity

This term refers to the mental capacity of the Will-maker at the time the Will was made. They must have been of sound mind and memory and had an understanding of the nature and effects of the Will, its implications, and the nature, extent and value of their estate.

Undue Influence

A Will may be contested on the grounds of undue influence if it's believed the Will-maker was coerced into making the Will.

Fraud or Forgery

If there are suspicions that the Will is not genuine, that it was altered without consent, or the Will-maker's signature was forged, the Will can be contested.

Proper Execution

A Will must be correctly executed, meaning it should be signed by the Will-maker in the presence of two or more witnesses present at the same time. If this wasn't followed, the validity of the Will can be challenged.

Challenging the Contents of the Will

In Victoria, even if a Will is valid, you may be able to challenge the way the Will attempts the distribution of the estate. The primary ground for this is the family maintenance provisions under Part IV of the Administration and Probate Act 1958, where the Court may order that provision be made out of the estate for the proper maintenance and support of an eligible person. An eligible person broadly includes:

  • Spouse or Domestic Partner
  • Former Spouse or Domestic Partner (under limited circumstances)
  • Child or Step-Child of the Deceased
  • Grandchild of the Deceased
  • Registered Caring Partner
  • Member of the Household

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Are There Time Limits For Contesting a Will?

Just as with many legal proceedings, there are specific time limits within which a Will must be contested here in Victoria. If you are contesting the validity of the Will, this should be done before Probate or Letters of Administration are granted. If you are contesting the way the Will distributes the assets by way of a family provision claim, this claim must be made within six months from the date when Probate or Letters of Administration are granted. Probate is the court process to prove the Will and Letters of Administration are where there is no Will – or when someone other than the named Executor is applying.

However, in some circumstances, it may be possible to contest a Will beyond this six-month period. Courts may allow an extension, but only under exceptional circumstances. Given the strict nature of these time limits, it's crucial that anyone considering contesting a Will seeks immediate legal advice.

If you believe you have a right to contest a Will, it is strongly advised to seek urgent legal counsel. We're here to provide expert advice and help you understand your rights at Goldsmiths Lawyers.

Can you Stop Someone Else From Contesting a Will?

It's essential to understand that you can't fully prevent someone from contesting a Will if they are eligible and have valid grounds to do so under the law. However, certain steps can be taken to defend a claim or to potentially reduce the chances of a Will being contested, including creating a clear, valid Will that stands up to legal scrutiny.

Process of Contesting a Will

The process of contesting a Will, like most legal proceedings, begins with seeking legal advice. Generally, the steps following involve:

At Goldsmiths Lawyers, we are committed to providing the necessary support and guidance to navigate this challenging, complicated legal terrain. Whether you need to challenge the validity or the contents of a Will, our experienced team is here to ensure your rights and interests are protected. If you require legal advice pertaining to contesting a Will, enquire with us today.

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Get in Touch

Goldsmiths Lawyers is conveniently located close to Melbourne's Court precinct at:
52-54 Rosslyn Street,
West Melbourne VIC 3003