I Want To Challenge A Deceased Estate – What Should I Do?

Article by Charlotte Black – Associate

So you feel that you have not been sufficiently provided for in someone else’s Will.  You might be a partner or spouse of the deceased, a child of the deceased or another close relative.  We are often asked whether you have a right to challenge an estate and seek greater provision?  The answer is unfortunately not a simple one.

In Victoria, the right to challenge a deceased estate depends on a number of factors.  Such a legal challenge, commonly referred to as a Testator’s Family Maintenance claim or Part IV claim, is governed by the Administration and Probate Act 1958 (‘Act’).

Can I challenge the deceased’s Will?

In Victoria, to contest an estate, you must lodge a claim against the estate.  However, not every person is entitled to lodge a claim.  It is important to determine, firstly, whether are eligible to make a claim.

You may be eligible to lodge a claim if:

1. You are an eligible person; and
2. You believe that adequate and proper maintenance has not been made for you in the deceased’s Will.

Are there any time limits in which an estate can be challenged?

Generally speaking, a person has six months from the date that the Grant of Probate was made to challenge an estate.

However, a challenge can be brought outside of this six-month period but you are required to first obtain the approval of the court to do so.  You would need to show that there was a genuine reason as to why the claim was not lodged during the six-month period and that the estate would not be prejudiced by the bringing of a claim outside of the six-month period.

Who is an eligible person?

The question of who is deemed to be an ‘eligible person’ has expanded over time and is now a rather vast list of people.

Examples of eligible persons may include:

1. A spouse or domestic partner of the deceased;
2. A child of the deceased;
3. An adopted child of the deceased;
4. A step-child of the deceased;
5. A person who believed the deceased was their parent;
6. A former spouse or domestic partner of the deceased;
7. A caring partner of the deceased;
8. A grandchild of the deceased;
9. A spouse of a child of the deceased (where the child dies within one year of the deceased’s death); and
10. A person who was a member of the deceased’s household at the time of the deceased’s death.

This is obviously quite a long list which includes a variety of different people.   The question of whether you are an eligible person may also not be clear and as such, you should seek legal advice to determine your eligibility.

Has the deceased made adequate and proper maintenance for me?

The question of whether the deceased has made adequate and proper maintenance for you or another eligible person is not easily answered.  The court will consider a number of factors in determining this question and also compare the eligible person making such a claim to the beneficiaries of the Will and any other eligible person to determine whether the threshold of adequacy has been met.

Some factors the court considers on the question of adequate and proper maintenance include:

1. Did the deceased leave any reasons for why they made their Will the way they did?
2. What was the nature of the relationship between you and the deceased including the length of that relationship?
3. What are your financial circumstances?
4. Did you make any significant contribution to building up the deceased’s assets?
5. Did you make any significant contribution to the deceased’s welfare (such as care, compassions and so on)?
6. Do you have any health problems such as medical conditions?
7. How old are you?
8. What are your financial resources including earning capacity, asset position and financial needs?

This is of course not an exhaustive list, and the Act provides that the court can also take into account anything else it considers relevant.  Importantly, the court is not one to consider fairness as the utmost factor in determining the question of adequate and proper maintenance.  Whilst it can be taken into account, it is the factors that the court considers in determining whether sufficient provision has been made for you under a deceased’s Will.

What should I do next?

If you wish to lodge a claim against an estate, you should first speak with one of our experienced lawyers who can provide you with an assessment of your case.

The question of whether you can lodge a claim and whether the claim would be appropriate is not easily answered.  However, the consequences of not challenging an estate when you may have had a right to can be drastic.

If you require specialist advice on filing a claim against an estate, please contact Mr Richard Mackenzie or Ms Charlotte Black on (03) 8621 1000 or via email at advisors@emlawyers.com.au.