If a loved one’s Will isn’t valid or fair, you can challenge it in court. Challenging the Will’s validity and lodging a family provision claim can help you get what you’re entitled to.
You think the Will itself could be invalid.
You think you’ve been left out or treated unfairly under the Will.
Not every Will is valid.
Legally, a Will has to meet certain requirements – someone can’t pressure the testator to make choices, for example, nor can a Will be changed after it’s been witnessed and signed.
There are multiple reasons a Will might not be valid, including:
If you think a Will made by a recently deceased loved one could match any of those conditions – or even if you think something just seems strange – get in touch with our Wills and estates team.
We’ll help you file a caveat that stops probate from being granted for up to six months, giving us the time we need to investigate properly.
If we find evidence of invalidity, we’ll help you challenge and potentially overturn the Will in court.
A family provision claim is an action that certain people can take if they think they’ve been treated unfairly under a loved one’s Will.
A family provision claim accepts that the Will is valid, but disputes its moral fairness.
If a family provision application is successful, the Court can make a family provision order, so that the claimant will receive what the Court considers ‘adequate provision’ from the deceased person’s estate.
Family provision claims can only be lodged by certain people, including the deceased’s:
If you meet the eligibility requirements, you can lodge a family provision claim in the Supreme Court of Victoria.
When deciding a family provision claim, the Court considers a number of factors, including:
The Court can also consider:
Talk to our experienced estate litigation solicitors to find out how we can help you make a successful claim.
There are two main ways to defeat family provision claims:
By planning your estate administration properly before you die, you can help make sure that the risk of claims against your estate is minimised.
If you’re an executor administering an estate that’s facing a claim, talk to a solicitor about your options.
You should balance the deceased’s wishes with what’s best for the estate – sometimes, it can cost the estate less to settle a claim than to fight it out in court.
Your solicitor assesses your eligibility and helps you collect evidence that supports your claim.
You solicitor helps you lodge an application for a claim within six months of the grant of representation.
Your solicitor notifies the estate executor and other eligible parties of your claim in writing.
Your solicitors negotiates on your behalf with the executor – you may be able to settle your claim quickly and cost-effectively.
If both sides can’t reach a settlement, the Court will assess the strength of your claim and make a decision.
Penny is a leading family law solicitor admitted in the Supreme Court of Victoria.
She has a broad range of expertise across multiple practice areas like family law, Wills and estate planning, and personal injuries, and holds a Masters of Wills and Estates Law.
Nick is a senior personal injury and estate law solicitor who has practised in both Victoria and Queensland.
His local and interstate experience covers statutory claims, common law damages, and strategic estate planning.
Nick is fluent in both Greek and Spanish.
If you’re thinking about making or updating a Will, reading up on the basics of Wills and estate planning can be helpful.
Get started with our library of easy-to-read articles and guides.
A 2015 study analysed 109 family provision claims from across Australia in 2011 and found that 81 of them (74%) were successful.
Interestingly, the rate of success increased with the size of the estate. Nationally, claims against estates under $500,000 had a success rate of 61%, whereas claims against estates worth more than $3 million had a success rate of 100%.
There are several reasons that a Will can be considered invalid, including:
Although the validity of a Will may be open to challenge even after probate has been granted, making such a challenge would normally be extremely difficult.
Similarly, although a family provision claim can be lodged after the six-month time limit, you’ll need to apply to the Supreme Court of Victoria for permission to do so.
The best way to successfully challenge or contest a Will is to lodge a probate caveat as soon as possible. Even if you’re not sure whether you want to move ahead with a claim, a caveat can delay a grant of probate for up to six months, giving you and other eligible parties time to assess your options and seek professional legal advice.
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