The power to make a Will and choose how to distribute your estate comes with responsibility.
The law can intervene if a Will Maker (called a 'Testator') fails to properly consider who should receive their estate or if the Will results from illness, fraud or improper pressure.
If you have not been adequately provided for in a Will in Victoria, then there are two key claims that you may be able to make. The basis for these claims are (in general terms):
- That the Testator did not understand or agree to the terms of the Will when they executed it. This type of claim seeks to invalidate the Will, or
- That the Testator has not made proper provision for a person for whom they had an obligation to provide. This type of claim is based on Part IV of the Administration and Probate Act 1958 (Vic) ("the Act") and is often called a 'family provision' or 'Part IV' claim.
Invalidating a Will
For a Will to be valid, the Testator must have had the capacity to understand what they were signing, and signed free from any overt pressure or influence. The most common grounds used to argue that a Will is invalid are therefore:
- That the Testator was too unwell (often with dementia or similar degenerative illness) to have the capacity to reasonably assess who should receive their estate, or
- That the Testator was unduly pressured or influenced by someone into making their Will. This goes beyond a person asking or suggesting that a Will should be made to favour them, and involves actually pressuring the Testator to sign against their better judgement.
If you believe a Will is invalid, you should take urgent steps to prevent a Grant of Probate from being issued. This is done by lodging a Probate Caveat in the Supreme Court. Alternatively, you can seek to have a Grant of Probate revoked if it has already issued, but this should occur as soon as possible after the Grant has been made.
Family Provision claims (Part IV claims)
These claims are based on the concept that a Testator has a moral obligation to properly consider who should receive a share in their estate. It does not rely on the Will being invalid. The steps in considering any family provision claim are:
- You must be an 'eligible person' and Section 90 of the Act sets out the full list of eligible people. This includes spouses, domestic partners, children, step-children and other persons who were dependant on the Testator for support.
- The Testator must have had a moral duty to make provision for you. A range of factors are considered here, such as your relationship with the Testator, whether you contributed to their financial or personal welfare, and whether you were dependant on them. It will also be considered whether there was any conduct by you that justified omission from the Will.
- You must show that the provision made in the Will (if any) is not adequate for your proper maintenance and support. This requires an examination of your finances and usually those of other beneficiaries.
If the Court is satisfied that you ought to have further provision made for you, then a Judge will determine the appropriate amount.
Commonly, the claim is resolved by agreement between the parties at mediation, and does not need to proceed to determination before a Judge.
There is a strict time limit of 6 months from the date of the Grant of Probate to commence a family provision claim. See our previous article for further details on Part IV claims.
How can Sharrock Pitman Legal assist?
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
Liability limited by a scheme approved under Professional Standards Legislation.
Binay Prasad is a Senior Associate of Sharrock Pitman Legal and an Accredited Specialist in Wills and Estates law.
Binay has over 10 years of experience in the field of wills and estates and has a particular interest in complex estates involving business, family trusts, and SMSFs. Binay also has experience in family law, which complements his wills and estates practice. For further information, contact Binay on his direct line (03) 8561 3329.