Contesting a Will in Victoria

Being left out of a will — or receiving far less than you expected — is one of the most painful discoveries a grieving family member can face. In Victoria, the law gives certain people the right to challenge the adequacy of what they received, even if the will itself is legally valid. But the process has strict eligibility requirements, a hard deadline, and real financial risks if you get it wrong.

This article covers the two main ways a will can be contested in Victoria, who can do it, and what the process actually looks like.

Two Different Things People Mean by "Contesting a Will"

The phrase "contesting a will" covers two very different legal actions:

1. Challenging the will's validity — arguing that the will itself is legally defective and should not be admitted to probate at all. Common grounds include:

• The deceased lacked testamentary capacity when they signed (e.g., advanced dementia)
• The deceased was under undue influence from another person
• The will was not properly witnessed or executed under the Wills Act 1997 (Victoria)
• The deceased was fraudulently induced to sign

2. Making a family provision claim — accepting that the will is legally valid, but arguing that it fails to make adequate provision for your proper maintenance and support. This is governed by Part IV of the Administration and Probate Act 1958.

Most disputes that people call "contesting a will" in everyday language are actually family provision claims. The two actions have different eligibility criteria, different courts, and different outcomes.

Who Can Make a Family Provision Claim in Victoria?

The Administration and Probate Act 1958 defines "eligible persons" who can apply to the Supreme Court for further provision from the estate. In Victoria, this includes:

• A spouse or domestic partner of the deceased (including a de facto partner)
• A child of the deceased — including adult children and stepchildren in some circumstances
• A former spouse or domestic partner in certain cases
• A person who was wholly or substantially maintained or supported by the deceased at the time of death (this can include a grandchild, sibling, or other person)

Adult children do not have an automatic right to inherit — but they do have the right to ask the Court to make proper provision if the will failed to do so. Whether the Court awards anything depends on a range of factors.

The 6-Month Deadline — This Is Hard

The most important thing to know about a family provision claim is the deadline: 6 months from the date the Grant of Probate is issued.

This deadline is strict. The Court has discretion to extend it, but only in exceptional circumstances where a claimant can show both a good reason for the delay and that the prejudice to the claimant outweighs the prejudice to the estate and beneficiaries.

If the executor distributes the estate before 6 months have elapsed, and a family provision order is later made by the Court, the executor can be held personally liable for the distributed funds. This is why prudent executors wait out the full 6 months before making final distributions.

The clock starts from the date the grant is issued — not the date of death, and not the date probate was applied for. If you are considering a claim, do not wait. Notify the executor in writing that you are considering an application and seek legal advice immediately.

What the Court Considers in Victoria

The Supreme Court of Victoria does not automatically give extra provision to every eligible person who applies. It makes an order only if it is satisfied that the will (or intestacy) has failed to make adequate provision for the proper maintenance and support of the claimant.

In exercising that discretion, the Court weighs a range of factors, including:

• The nature of the relationship between the claimant and the deceased
• The claimant's financial needs and resources, including future needs
• Whether the claimant provided care, domestic services, or other contributions to the deceased
• The deceased's expressed reasons for their testamentary decisions (if known)
• The size and nature of the estate
• The needs and circumstances of other beneficiaries
• Any conduct of the claimant that the Court considers relevant

Courts in Victoria have made provision for adult children in financially desperate circumstances, even where the deceased intentionally excluded them. But courts have also dismissed claims from adult children who were financially independent and had received substantial lifetime gifts. The outcome is genuinely fact-specific.

Challenging the Will's Validity: Grounds and Process

If the argument is that the will itself is flawed — not just that it was unfair — the process is different. You (or your solicitor) file a caveat with the Supreme Court Probate Office before a grant of probate is issued.

A caveat prevents the Probate Office from issuing the grant until the caveat is resolved. The caveat-holder must then file a formal objection setting out the grounds of challenge. The matter proceeds as contested litigation before the Court.

Challenging a will's validity is significantly more complex and expensive than a family provision claim. You will need expert evidence, potentially including a medical expert on testamentary capacity or a handwriting expert on execution. Success requires proving on the balance of probabilities that the legal requirement was not met.

Common practical hurdles:

• The burden of proof rests with the challenger
• Evidence of the deceased's state of mind at the time of signing is difficult to obtain years later
• Legal costs can be substantial; courts do not always award costs to the successful party
• The challenge must be filed before probate is granted — not after

Practical Steps If You Are Considering a Challenge

If you think the will is invalid:

1. Contact a solicitor with estate litigation experience as soon as possible
2. File a caveat at the Supreme Court Probate Office before the grant is issued
3. Gather all evidence available: medical records, witness accounts, correspondence

If you are an eligible person and want more provision:

1. Notify the executor in writing of your potential claim (this helps preserve your rights even if you have not formally filed)
2. Seek legal advice on the merits and costs of a claim
3. File an application in the Supreme Court within 6 months of the grant of probate
4. Consider mediation — many family provision claims settle without a full court hearing

If You Are the Executor: What to Do

If you receive notice that someone is considering a challenge, do not distribute the estate until the matter is resolved or the 6-month window has fully passed without a claim. Keep meticulous records of all estate transactions. Seek legal advice on whether you should file a notice with the Court.

The Victoria Probate Process Guide includes guidance for executors on managing the 6-month family provision period, maintaining an Administration Account, and distributing assets safely after the creditor window closes.

Key Numbers to Know

• 6 months from the grant date: the family provision claim deadline
• 6 months is also the period executors wait before distributing assets
• The caveat to block probate must be filed before the grant is issued
• Mediation resolves a significant proportion of family provision claims before trial

If you are considering a challenge — whether on validity grounds or on inadequate provision — the time pressure is real. The 6-month clock starts from the grant, not from when you first learn about the will's contents.

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