While everyone has the right to decide how their assets will be distributed following their death, treatment of family members is generally covered by certain moral obligations and responsibilities. There are laws that exist to protect people who have been unfairly treated in a Will.
Family provision legislation in each State allows the Court to override the terms of a Will so as to provide proper maintenance and support for an eligible applicant.
Please select the state in which the deceased person resided below for more information.
Am I eligible to contest a Will in Victoria?
In Victoria, the legislation governing family provision claims is the Administration and Probate Act 1958. Amendments to the Act became operative on 1 January 2015.
An eligible applicant must make a claim within 6 months from the date of the grant of Probate or Letters of Administration.
Eligible applicants include:
Spouse: person married to the deceased as at the time of death.
Domestic Partner: a registered domestic partner under the Relationships Act 2008; an unregistered domestic partner living with the deceased as a couple on a genuine domestic basis for at least 2 years; or a parent of a minor child of the deceased.
Former spouse: a former spouse who must, as at the date of death, have been able to take proceedings under the Family Law Act but the deceased’s death prevented them from commencing or continuing the proceedings.
Former domestic partner: a former domestic partner who must, as at the date of death, have been able to take proceedings under the Family Law Act at the time of death but the deceased’s death prevented them from commencing or continuing such proceedings.
Child: a child of the deceased including an adopted child.
Stepchild: either a minor or adult stepchild of the deceased as at the date of death. Assumed child: a person who believed they were a child of the deceased and treated by the deceased as a natural child.
Grandchild: a child of the deceased’s own child. A grandchild must have been wholly or partly dependent on the deceased for proper maintenance and support.
Spouse of a domestic partner of a child of the deceased who died within a year of the deceased’s death: a son-in-law or daughter-in-law of the deceased who was wholly or partly dependent on the deceased for proper maintenance and support.
Registered caring partner: a person who at the date of death was in a registered caring relationship with the deceased pursuant to the Relationships Act 2008. A registered caring partner must be wholly or partly dependent on the deceased for proper maintenance and support. “A registered caring relationship” involves two adults who are not a couple or married to each other, and who may or may not otherwise be related by family, where one or both of the parties provide personal or financial commitment and support of a domestic nature for the material benefit of the other, not for fee or reward and irrespective of their genders and whether or not they are living under the same roof.
Member of the household: any person who was a member of the household of which the deceased was a member at the date of death; or a former member of the household who would have been likely to again become a member of the household in the event the deceased had not died. A person claiming under this category must have been wholly or partly dependent on the deceased for proper maintenance and support.
Am I eligible to contest a Will in New South Wales?
In New South Wales, the legislation governing family provision claims is the Succession Act 2006.
An eligible applicant must make a claim within 12 months from the date of death of the deceased.
Under section 57(1) of the Succession Act 2006, the following people are classified as eligible applicants for a family provision claim:
Spouse: a husband, wife or defacto partner (including same-sex couples) of the deceased at the time of death.
Defacto Partner: two adults who live together as a couple and who are not married or related by family, irrespective of gender.
Child: a minor or adult child of the deceased including an adopted child and child of a defacto relationship.
Former spouse: a former husband or wife who was divorced from the deceased.
Grandchild: a child of the deceased’s child. A grandchild must show dependency or partial dependency on the deceased during their lifetime.
Member of household: any person who was a member of the household of the deceased at some time, can apply. A member of a household will need to show dependency.
Am I eligible to contest a Will in Queensland?
In Queensland, the legislation governing family provision claims is the Part 4 of the Succession Act 1981.
An eligible applicant must make a claim within 9 months from the date of death of the deceased. However, the Executor or Administrator is able to distribute the estate after 6 months of the deceased’s death, if they have not been notified by the applicant of a potential family provision claim.
Under section 41(1) of the Succession Act 1981, the following people are classified as eligible applicants for a family provision claim:
Spouse: a husband, wife or defacto partner (including same sex partners) of the deceased at the time of death. Also includes a former spouse or former defacto partner of the deceased who was dependant.
Defacto Partner: one of two persons who are living together as a couple on a genuine domestic basis, irrespective of gender for a continuous period of at least 2 years ending on the deceased’s death. They must not be married to each other. A number of factors are considered to determine a “genuine domestic basis”.
A Dependant Former Spouse or Defacto Partner: former husband or wife who was divorced from the deceased; not remarried; and at the time of death was either receiving or entitled to receive maintenance from the deceased. A former defacto partner may be eligible if they are dependant, that is, they are the parent of a minor child of the deceased who was entirely or substantially maintained by the deceased as at the date of death.
Child: a minor or adult child of the deceased including a foetus as at the date of death provided such a child is born and remains alive for 30 days. Also includes a stepchild and adopted child.
Stepchild: a child of the spouse of a deceased including a defacto spouse. Under the Act, only divorce terminates the relationship of stepchild and step-parent. Therefore if this occurs, a stepchild is not eligible in that instance.
Parent: the parent of a deceased may be eligible if they were dependant on the deceased for maintenance or support as at the date of death.
Dependant: any person who was wholly or substantially maintained by the deceased at the time of death and being either; a parent of the deceased; the parent of a minor child of the deceased; or a minor.
Am I eligible to contest a Will in South Australia?
Under section 6 of the Inheritance (Family Provision) Act 1972, the following people are classified as eligible applicants for a family provision claim:
Spouse: a person legally married to the deceased as at the date of death.
Former Spouse: a person who has been divorced from the deceased.
Domestic Partner: a person who has lived with the deceased in a close personal relationship for at least 3 years or the relationship produced a child.
Child: a minor or adult child of the deceased including an adopted child.
Stepchild: a child of the spouse of a deceased including a defacto spouse. The stepchild must have been maintained or supported wholly or partly or entitled to be maintained by the deceased immediately before death.
Grandchild: a child of the deceased’s child.
Parent: a parent of the deceased who cared for or contributed to the maintenance of the deceased during their lifetime.
Sibling: a sibling of the deceased who cared for or contributed to the maintenance of the deceased during their lifetime.
People in close personal relationships: any person whether related or not is able to bring a claim if they satisfy the criteria of being in a “close personal relationship” with the deceased.
Am I eligible to contest a Will in Western Australia?
The legislation governing family provision claims in Western Australia is section 7 of the Family Provision Act 1972.
An eligible applicant must make a claim within 6 months from the date of the grant of Probate or Letters of Administration.
Under section 7 of the Family Provision Act 1972, the following people are classified as eligible applicants for a family provision claim:
- Spouse: a person who was married to the deceased as at the date of death.
- Defacto Partner: one of two persons who are living together as a couple in a marriage-like relationship, irrespective of gender. The defacto partner must have lived with the deceased for at least 2 years prior to the deceased’s death.
- A Dependant Former Spouse or Defacto Partner: a former husband, wife or defacto partner of the deceased who was, at the time of death, receiving or entitled to receive maintenance from the deceased.
- Child: any child of the deceased, including an adopted or illegitimate child who was living as at the date of death or was born within 10 months of the date of death.
- Stepchild: a child of the spouse of a deceased including a defacto spouse. Under the Act, there are limited circumstances in which a stepchild can claim.
- Grandchild: the grandchild or illegitimate grandchild of the deceased who was either wholly or partly maintained by the deceased as at the date of death.
- Parent: the parent of a deceased may be eligible if the relationship between the parent and the deceased is admitted or established during the lifetime of the deceased.
Am I eligible to contest a Will in Tasmania?
The legislation governing family provision claims in Tasmania is the Testator’s Family Maintenance Act 1912.
An eligible applicant must make a claim within 3 months from the grant of representation.
- Under section 3A of the Testator’s Family Maintenance Act 1912, the following people are classified as eligible applicants for a family provision claim:
- Spouse: a husband, wife or defacto partner (including same sex partners) of the deceased at the time of death. Also includes a former spouse or partner to a significant relationship.
- Partner to a significant relationship: where two adults have a relationship as a couple, including same sex couples, and are not married to each other or related by family.
- A former spouse or partner to a significant relationship: a former husband or wife who was divorced from the deceased and at the time of death was either receiving or entitled to receive maintenance from the deceased. A former partner to a significant relationship can also apply if they were either receiving or entitled to receive maintenance from the deceased.
- Child: a minor or adult child of the deceased including a stepchild and adopted child. Stepchild: a child of the current spouse of the deceased. This also includes children of a current defacto or same-sex spouse.
- Parent: the parent of a deceased may commence a claim for provision if the deceased died without a spouse or child.
Dispute or contest a Will FAQs
Every case is different.
The procedure of contesting a Will depends largely on the strategy we employ in running your case.
It also depends on the attitude of the opposing party:
- If the opposing party is willing to enter into settlement negotiations prior to the commencement of proceedings, then an early resolution of the matter can be explored.
- If the opposing party refuses to enter into negotiations, prior to the commencement of proceedings, then we will commence litigation on your behalf.
Below is a rough guide of how most Will dispute cases will proceed:
- Investigate the nature of the estate and collate relevant information in support of your case
- Notify the personal representative of the Estate or their solicitor of your intention to commence a family provision claim
- Prepare your evidence in support of your case
- Issue proceedings for your matter to be referred to a compulsory Mediation
- Exchange evidence with the opposition
- Attend the Mediation to negotiate a settlement with the opposition. Approximately 98% of cases settle at Mediation and a Court trial is therefore not required. In the event the matter does not settle, negotiations can still take place after the Mediation
- Prepare your case for a Court trial
Once you have made the decision to contest a Will, you should obtain legal advice as soon as possible to discuss your prospects of success along with any other enquiry you may have.
Some of the grounds include:
- Being totally excluded or inadequately provided for under the Will or on intestacy
- The Will was not executed correctly by the Will maker
- The Will that was executed was not the last Will of the Will maker
- The Will maker lacked capacity at the time of executing the Will
- The Will maker was unduly influenced to make the Will
- The Will maker did not know, understand or approve the contents of the Will
- The Will was made in suspicious circumstances or there is evidence of Will tampering
Approximately 98% of cases settle at mediation.
However, should your case be heard before a Judge under section 91 A(1) of the Administration and Probate Act 1958, the Court must consider the following in making an order for provision:
- The contents of the Will
- Any evidence of the deceased’s reasons for making the dispositions under the Will
- Any evidence of the deceased’s intentions in relation to providing for the applicant
Under section 91 A(2) of the Administration and Probate Act 1958, the Court may consider the following in making an order for provision:
- The nature and length of the relationship with the deceased
- Any obligations the deceased had to the applicant or the beneficiaries
- The size and nature of the estate and liabilities
- The present and future financial resources and needs of the applicant and beneficiaries of the estate
- Any physical, mental or intellectual disability affecting the applicant or any beneficiary of the estate
- The age of the applicant
- Any contribution of the applicant to building up the estate or welfare of the deceased or the deceased’s family
- Any benefits previously given by the deceased to any applicant or to any beneficiary
- Whether the applicant was being wholly or partly maintained by the deceased and the extent and the basis of that dependency
- The liability of any other person to maintain the applicant
- The character and conduct of the applicant or any other person
- The effect of making a family provision order on the other beneficiaries
- Any other matter the Court considers relevant
Section 91(4) of the Administration and Probate Act 1958, sets out the factors the Court must consider when determining the amount of provision to be awarded to an applicant.
Under section 50 of the Wills Act 1997, the following people are entitled to a copy of the deceased’s Will:
- Any person referred to in the Will
- Any person named or referred to in an earlier Will as a beneficiary
- Spouse of the deceased
- Domestic partner of the deceased
- Parent, guardian or child of the deceased
- Any person who would be entitled to a share if the deceased died intestate
- Any parent of a minor referred to in a Will or who would be entitled to a share if the deceased died intestate
- Any creditor or person who has a claim against the Estate and can produce evidence of such a claim
If you fall within any of the above categories, you can write to the Executor or Administrator of the Estate and request a copy of the deceased’s Will.
If the Executor/Administrator refuses to provide you with a copy of the Will, and a grant of Probate or Letters of Administration has been obtained, you can apply for a copy of the file from the Supreme Court of Victoria (Probate Registry) for a fee. The file will usually include the deceased’s Will, Death Certificate, Inventory of Assets and Liabilities and other pertinent documents.